LAST WILL AND TESTAMENT
AND
TESTAMENTARY TRUST AGREEMENT
OF [FULL LEGAL NAME OF TESTATOR]
(A Wisconsin Complex Will With Testamentary Trust)
Effective Date: [DATE OF EXECUTION]
County of Domicile: [COUNTY], Wisconsin
[// GUIDANCE: This template is intentionally drafted at a high level of sophistication. Practitioners should tailor every bracketed placeholder, confirm tax and Medicaid planning objectives, and ensure witness/notary procedures comply with the version of Wis. Stat. chs. 701 & 853 in force on the execution date.]
TABLE OF CONTENTS
- Document Header & Recitals
- Definitions
- Operative Provisions
3.1 Revocation of Prior Instruments
3.2 Identification of Family & Status
3.3 Appointment of Fiduciaries
3.4 Payment of Debts, Taxes & Expenses
3.5 Specific Bequests & Devises
3.6 Residuary Disposition and Pour-Over to Trust - Testamentary Trust
4.1 Creation; Name; Governing Law
4.2 Beneficiaries & Shares
4.3 Trustee Powers & Fiduciary Standards
4.4 Distribution Provisions
4.5 Administrative Provisions
4.6 Termination & Final Distribution - Guardianship of Minor Children
- No-Contest & Alternative Dispute Clauses
- General Provisions
- Execution Block
- Self-Proving Affidavit
1. DOCUMENT HEADER & RECITALS
1.1 Identification. I, [FULL LEGAL NAME], presently residing at [ADDRESS], being of legal age and of sound mind and memory, do hereby make, publish, and declare this instrument to be my Last Will and Testament (the “Will”).
1.2 Intent. This Will is executed pursuant to Wis. Stat. ch. 853 and is intended to dispose of all property over which I have testamentary power at my death, establish a testamentary trust for the benefit of my intended beneficiaries, and appoint fiduciaries to administer my estate and trust.
1.3 Consideration. Although no contractual consideration is required for a testamentary instrument, I declare my intention that this Will be legally binding and enforceable under Wisconsin law.
2. DEFINITIONS
The following terms, when capitalized, have the meanings set forth below. Any term not defined herein shall have the meaning ascribed under applicable Wisconsin probate or trust law.
“Applicable Law” – The Wisconsin Probate Code, Wis. Stat. chs. 851-879, the Wisconsin Trust Code, Wis. Stat. ch. 701, and any other controlling federal or state statutes or regulations, as the same may be amended.
“Beneficiary” – Any person or entity entitled to receive a distribution under this Will or the Trust.
“Child” or “Children” – Includes any biological or legally adopted child of mine, whether now living or hereafter born or adopted.
“Estate” – All probate assets distributable through this Will.
“Personal Representative” – The individual or corporate fiduciary appointed under Section 3.3 to administer my Estate; synonymous with “executor” under Wis. Stat. § 851.23.
“Trust” – The testamentary trust created under Article 4, to be known as the “[NAME] Family Trust.”
“Trust Assets” – All property held in the Trust at any given time, including any accumulated income.
“Trustee” – The individual or corporate fiduciary appointed to administer the Trust as provided in Article 4.
[// GUIDANCE: Add or delete definitions to suit the bespoke estate plan.]
3. OPERATIVE PROVISIONS
3.1 Revocation of Prior Instruments
I hereby revoke all prior wills, codicils, and testamentary dispositions heretofore made by me.
3.2 Identification of Family & Status
I am married to [SPOUSE FULL NAME], hereinafter “my Spouse.” We have the following Children:
1. [NAME OF CHILD 1], born [DOB];
2. [NAME OF CHILD 2], born [DOB]; etc.
[If unmarried or with no children, modify accordingly.]
3.3 Appointment of Fiduciaries
3.3.1 Personal Representative. I nominate [PR NAME], of [ADDRESS], as Personal Representative. If [PR NAME] fails to qualify or ceases to serve, I nominate [ALTERNATE PR NAME] as successor. Bond is waived to the fullest extent permitted by Wis. Stat. § 856.25.
3.3.2 Trustee. I nominate [TRUSTEE NAME] as initial Trustee of the Trust, with [ALTERNATE TRUSTEE NAME] as successor. Bond is waived unless otherwise required by the supervising court.
3.3.3 Guardian. If at my death any Child is a minor, I nominate [GUARDIAN NAME] as guardian of the person and estate of such Child, with [ALTERNATE GUARDIAN NAME] as successor, subject to judicial confirmation under Wis. Stat. ch. 48 or 54, as applicable.
3.4 Payment of Debts, Taxes & Expenses
3.4.1 Debts & Expenses. My Personal Representative shall pay from the residue of my Estate all enforceable debts, expenses of last illness and burial, and costs of estate administration.
3.4.2 Taxes. All estate, inheritance, generation-skipping transfer, and similar taxes occasioned by my death (“Death Taxes”) shall be paid from the residual Estate without apportionment, unless a beneficiary disclaims pursuant to Wis. Stat. § 854.13.
3.5 Specific Bequests & Devises
3.5.1 Tangible Personal Property Memorandum. Any written statement or list disposing of tangible personal property that I sign and date, referring to Wis. Stat. § 853.32, is incorporated herein by reference.
3.5.2 Cash & Property Bequests.
a. [BENEFICIARY] – $[AMOUNT];
b. [CHARITY], EIN [#] – [DESCRIPTION OF GIFT].
Any specific devise that fails shall lapse into the residuary Estate.
3.6 Residuary Disposition & Pour-Over to Trust
All residue of my Estate, including lapsed devises, shall be distributed to the Trustee to be held, managed, and distributed in accordance with Article 4.
4. TESTAMENTARY TRUST
4.1 Creation; Name; Governing Law
4.1.1 Creation. Upon my death, the Trust is hereby created and shall be irrevocable.
4.1.2 Name. The Trust shall be known as the “[NAME] Family Trust.”
4.1.3 Governing Law. The Trust shall be governed by the substantive law of Wisconsin, without regard to its conflict-of-laws rules. Wis. Stat. ch. 701 (Wisconsin Trust Code) shall apply except as otherwise expressly modified herein.
4.2 Beneficiaries & Shares
4.2.1 Primary Beneficiaries. My Children, in equal per stirpes shares.
4.2.2 Contingent Beneficiaries. If no Child survives me, the Trust shall be distributed to [CONTINGENT BENEFICIARY], or, if none, to my heirs at law determined under Wis. Stat. § 852.01.
4.3 Trustee Powers & Fiduciary Standards
4.3.1 Incorporation of Statutory Powers. The Trustee shall have all powers granted under Wis. Stat. § 701.0815, as amended.
4.3.2 Prudent Investor Rule. The Trustee shall invest Trust Assets in accordance with Wis. Stat. § 881.01 (the Wisconsin Prudent Investor Act).
4.3.3 Delegation. The Trustee may delegate investment and administrative functions consistent with Wis. Stat. § 701.0817.
4.3.4 Indemnification. To the fullest extent permitted by law, the Trustee shall be indemnified from Trust Assets against any liability incurred in good-faith administration of the Trust, except for acts of willful misconduct or gross negligence.
4.3.5 Liability Cap. The Trustee’s personal liability is limited to the extent of Trust Assets; no recourse shall lie against the Trustee’s personal estate for acts taken in a fiduciary capacity.
4.4 Distribution Provisions
4.4.1 Discretionary HEMS Standard. During each Beneficiary’s lifetime, the Trustee may distribute net income and principal for such Beneficiary’s health, education, maintenance, and support (“HEMS”), considering other resources reasonably available.
4.4.2 Mandatory Termination at Age [AGE]. Upon a Beneficiary reaching [AGE (e.g., 30)], the Trustee shall distribute to that Beneficiary his or her remaining vested share, outright and free of trust.
4.4.3 Spendthrift Protection. To the maximum extent allowed by law, all Trust interests are subject to a spendthrift restriction under Wis. Stat. § 701.0501.
4.4.4 Special Needs Savings Clause. If any Beneficiary is or becomes eligible for means-tested government assistance, the Trustee may withhold distributions that would impair such eligibility and instead apply funds for supplemental needs.
4.5 Administrative Provisions
4.5.1 Accounting & Reports. The Trustee shall provide annual written accounts to the adult Beneficiaries and to any court having jurisdiction, consistent with Wis. Stat. § 701.0813.
4.5.2 Trustee Compensation. The Trustee is entitled to reasonable compensation consistent with Wis. Stat. § 701.0807, absent a separate written agreement.
4.5.3 Removal & Successor Trustees. A majority of the adult Beneficiaries may remove a Trustee for cause (as defined under Wis. Stat. § 701.0706) by written instrument delivered to the Trustee and filed with the probate court, and appoint a qualified successor.
4.5.4 Governing Forum; Injunctive Relief. The Probate Court for [COUNTY] County, Wisconsin, shall have exclusive jurisdiction over Trust matters. The court may issue injunctive relief to enforce Trust provisions.
4.6 Termination & Final Distribution
Upon the occurrence of the earliest of: (a) the death of the last surviving Beneficiary; (b) complete distribution of Trust Assets; or (c) a court order terminating the Trust under Wis. Stat. § 701.0414, the Trustee shall distribute remaining Trust Assets to the then-entitled Beneficiaries outright, free of trust.
5. GUARDIANSHIP OF MINOR CHILDREN
If any Child is a minor at my death, I request that the nominated Guardian in Section 3.3.3 be appointed to serve without bond. I further request that such Guardian confer and coordinate with the Trustee to ensure that distributions made under Article 4 are applied consistently with the Child’s best interests.
6. NO-CONTEST & ALTERNATIVE DISPUTE CLAUSES
6.1 No-Contest Clause. Any person who (a) directly or indirectly contests this Will or the Trust, or (b) participates in any proceeding to impair or invalidate any provision herein, shall forfeit any benefit provided to such person, and the forfeited interest shall pass to the residue of the Trust. This clause is intended to be enforceable under Wis. Stat. § 853.25.
6.2 Mediation. Prior to filing any petition or objection in court, a disputing party must submit the dispute to confidential mediation in [COUNTY] County, Wisconsin, with a mediator experienced in probate and trust matters. Costs shall be borne by the Trust unless the mediator allocates costs otherwise.
[// GUIDANCE: Arbitration in probate is disfavored in Wisconsin; mediation serves as a practical alternative.]
7. GENERAL PROVISIONS
7.1 Simultaneous Death. If my Spouse and I die under circumstances rendering the order of our deaths uncertain, I shall be deemed to have predeceased my Spouse for purposes of property disposition, consistent with Wis. Stat. § 854.03.
7.2 Survivorship Period. A Beneficiary must survive me by 120 hours to take under this Will, unless such application would cause an intestacy or disqualify the transfer for federal estate tax marital or charitable deductions.
7.3 Digital Assets. My Personal Representative and Trustee shall have authority to access, control, and dispose of my digital assets in accordance with Wis. Stat. ch. 711 (Revised Uniform Fiduciary Access to Digital Assets Act).
7.4 Exoneration of Fiduciaries. No fiduciary shall be liable for any loss to my Estate or the Trust unless arising from willful misconduct or gross negligence.
7.5 Severability. If any provision is held invalid, the remaining provisions shall continue in full force to the extent consistent with my overall dispositive intent.
7.6 Headings. Headings are for convenience only and shall not affect construction.
7.7 Integration. This instrument constitutes my entire Will and Trust agreement; there are no other testamentary instruments except as incorporated herein by reference.
7.8 Amendment & Revocation. I reserve the right to amend or revoke this Will in whole or in part by a later duly executed instrument, except that the Trust becomes irrevocable upon my death.
8. EXECUTION BLOCK
IN WITNESS WHEREOF, I, [FULL LEGAL NAME], the Testator, sign my name to this Will on the date indicated below, in the presence of the undersigned witnesses, who affirm that the Testator appears to be of sound mind and is executing this Will voluntarily.
Date: ____
[TESTATOR SIGNATURE]
[FULL LEGAL NAME], Testator
ATTESTATION
We, the undersigned witnesses, being present at the same time, hereby attest that the Testator signed and declared this instrument to be the Testator’s Last Will and Testament in our presence and that we, at the Testator’s request and in the Testator’s presence and in the presence of each other, have hereunto subscribed our names as witnesses.
-
_____ Date: __
[WITNESS #1 NAME], residing at [ADDRESS] -
_____ Date: __
[WITNESS #2 NAME], residing at [ADDRESS]
9. SELF-PROVING AFFIDAVIT
(State of Wisconsin, County of [COUNTY])
Before me, the undersigned authority, on this day personally appeared [TESTATOR], [WITNESS #1], and [WITNESS #2], all personally known to me or proven by satisfactory evidence of identity, and all being duly sworn, the Testator declared that the foregoing instrument is the Testator’s Last Will and Testament and that the Testator executed it willingly and voluntarily. The Witnesses each declared that the Testator appeared to be of sound mind and under no duress, fraud, or undue influence, and each Witness signed the Will in the presence and at the request of the Testator and in the presence of each other.
Subscribed, sworn, and acknowledged before me on this _ day of __, 20____.
Notary Public, State of Wisconsin
My Commission Expires: ____
[// GUIDANCE: Practitioners should (1) verify witness qualifications under Wis. Stat. § 853.07; (2) record the original Will with the probate registrar upon death; (3) consider filing a separate authorization for disposition of remains if cremation is contemplated; and (4) coordinate with financial institutions for beneficiary designations consistent with this plan.]
END OF DOCUMENT