Avoiding probate is often in everyone’s best interests. If you are seeking to save costs and minimize the burdens on your family, our attorneys can help you develop an estate plan that will avoid the probate process.

When it comes to planning your estate, there are numerous important decisions that you will need to make about how to divide your assets and what you want to happen, in the event that you are no longer able to care for yourself. However, there is another important question you need to answer, as well: How do you want your estate to pass to your loved ones after you die?

Broadly speaking, you have two options: Probate and non-probate transfers. Probate is the court process that must be used when someone dies, either with a will or without any estate plan in place. While probate is a viable option, it tends to be more time-consuming and expensive than making use of non-probate transfers. As a result, these days, many people are choosing to use various forms of non-probate transfers to plan the majority of their estate.

Types of Non-Probate Transfers

The following are some of the primary estate planning tools for effecting non-probate transfers in Wisconsin:

Trusts

A revocable trust (also known as a “living trust”) is an estate planning document that allows you to maintain control over your assets during your lifetime (similar to a will), but then avoids the probate process when you die. Many people use a revocable trust as the primary document in their estate plan.

There are various forms of irrevocable trusts. These trusts avoid probate, while also allowing for better tax planning and asset protection than can be achieved with other types of estate planning documents. Learn more about using trusts in your estate plan.

Joint Ownership

Assets that you own jointly with another person will transfer outside of probate as well. In Wisconsin, property can be owned jointly by spouses (in which case it is referred to as “marital property”) or by unmarried individuals. While assets that either spouse acquires during the marriage (and some assets that a spouse acquires prior to the marriage) will automatically be considered marital property, establishing joint ownership in other situations requires proof of joint tenancy “with a right of survivorship.”

In any case, to avoid unnecessary confusion, it is best to properly document joint ownership to ensure that any assets that you intend to be jointly owned will transfer outside of the probate process. You can use non-probate transfer tools to provide for alternate ownership of marital property as well.

Payable-On-Death Bank Account Designations

If you designate a bank account as payable-on-death (POD) with a beneficiary, when you die, the named beneficiary will be able to collect the remaining money in the account without going through probate. POD designations do not affect your ability to use the account during your lifetime, and the POD beneficiary will only have access to the account after your passing.

Transfer-On-Death Security Registrations

If you own stocks or other securities outside of your retirement accounts, you can designate these assets (or your entire brokerage account) to be transferable upon death to a named beneficiary. Like a POD account, the named beneficiary will take ownership of your transfer-on-death (TOD) securities automatically, without the need for probate.

Transfer-on-Death Real Estate Deeds

Wisconsin law recognizes TOD real estate deeds as well. With a TOD real estate deed, you designate a beneficiary who will become the owner of the property upon your death. The beneficiary does not have any rights in the property during your lifetime, and you remain free to use and sell the property as you choose.

Retirement Account Beneficiary Designations

You can also designate beneficiaries for retirement accounts, such as IRAs and 401(k)s, in order to avoid probate. In some circumstances, it may make sense to use a trust as the beneficiary as well.

Planning Your Non-Probate Estate

When planning your non-probate estate, it is important to make sure that you have given due consideration to all of your relevant assets, and that all of your estate planning documents are consistent with one another. Our estate planning attorneys can help you with this; in many cases, we can make non-probate estate planning a relatively straight-forward process. We can also help you manage and make changes to your estate plan over time, to ensure that it continues to reflect your final wishes.