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20 Years of Probate, 5 Common Mistakes: What Not to Put in Your Will By Melinda Gustafson Gervasi June 5, 2026 What is a Will, Anyway?  At its core, a Last Will and Testament is a legal document with a specific, focused job: it directs how your probate assets should be distributed after you pass away, and it names the person (the personal representative or executor) responsible for making sure those wishes are carried out. Think of it as the ultimate set of instructions for your probate estate.  Note -- probate assets are those assets that have no co-owner or named beneficiary.  If an asset has a co-owner or named beneficiary, that asset will pass to the person(s) named directly, ignoring the will and avoiding the probate process.  Because a will has such a specific purpose, cramming it full of every final thought, personal detail, or medical wish can actually cause major legal headaches. Over my two decades of practicing estate planning and probate law, I’ve seen a ...

A Final Note: An Estate Planning Love Letter By Melinda Gustafson Gervasi February 14, 2023 Happy Valentine's Day!  Today we pause to send messages of love and affection to our soul mates as well as treasured family and friends.  According to Britannica , the custom of sending missives of love and affection dates back to the 1500s.  The first commercially produced Valentines began to hit store shelves in the 1800s.  Today we can purchase them in bulk at our grocery store, send electronic cards via Hallmark, or post a gif on our social media tagging our beloveds.  Time has changed the medium, but the expression of love remains.  On this day set aside for love, it is with fond memory I recall reading a letter a client had written to their spouse.  It was to be a final letter, and in my mind, a love letter for the ages .  The words were not dripping with love and passion, but were a pragmatic list of items the reader would need to address when the au...

9 Things to Mention When Writing Instructions to a Trustee for Children By Melinda Gustafson Gervasi September 22, 2021 With a flourish you date the document and scrawl your signature on the line hovering above your name typed in Times New Roman font.  You drop the pen, sit back, let out a breath and say "we'll, I'm glad that is done".  In that moment you have created (or updated) your will.  Your children, age 13 and 11, now have legally appointed guardians if you and your spouse were to die.  The document also creates a trust fund to hold assets for the kids if they are orphaned before the youngest is age 30 (an age you set).  You are ready to cross "draft a will" off of your to-do list and get back to living life! It's true. The will is dated and signed (hopefully in accordance with the witnessing requirements of your home state), but is it really ready-to-go? If both you and your spouse were hit by the proverbial bus on your way home, would the trust...

Estate Planning in the Age of Misinformation By Melinda Gustafson Gervasi June 7, 2021 As the academic year comes to a close, I reflect on the many concepts my children studied during a year of virtual learning.  Math has gone from numbers the symbols used in geometry and algebra and social studies as moved beyond memorized State Capitals to more in-depth critical analysis skills.  Primarily the validity of source information.   As my daughter finishes her elementary school years I read along as she studied the last novel of her 5th grade education -- The Westing Game by Ellen Raskin.  Published by Puffin Modern Classics in 1978 the book plunges the reader into a mystery surrounding the will of an eccentric millionaire who lived in town.  Sixteen named heirs compete with each other to determine who killed the testator, Sam Westin, with the winner set to claim the $200 million estate.  Well I wasn't 5 pages into the book and rolling my lawyer eyes at th...

What Is A Personal Representative? By Melinda Gustafson Gervasi March 17, 2021 Are you delving into writing your own will?  Chances are you might be struggling with some of the legal jargon associated with Estate Planning & Probate.  Take a short pause and educated yourself on the various legal terms to minimize confusion or misunderstanding when you draft a document.  Here are a few suggestions for deepening your knowledge of a key role in an estate plan, the Personal Representative What is a Personal Representative:   This person is appointed by a court to administer the estate of a deceased individual.  In my home state of Wisconsin, the term Personal Representative is used.  However, other estates use the more familiar Executor or Executrix.  There are 50 different states in America.  Each has it's own laws governing estate planning and probate since the topic is a state's issue rather than a federal issue, such as immigration.  As a ...

  At the Heart of Estate Planning: Where can you do the greatest good if tragedy strikes By Melinda Gustafson Gervasi February 5, 2021 Lawyers ask a lot of questions when counseling clients.  In my estate planning practice a typical sequence of questions when developing an estate plan sounds like this: Me:  When you die, where do you want your probate assets to go? Client:   To my spouse. Me:  And what if your spouse has predeceased you? Client:  Oh, well to my children equally. Me:  And if a child had predeceased you, would his/her share go to any child(ren) he or she may have had. Client.  Umm, well....yes, yes that makes sense. Me:  Okay, this is the last one, but if the unthinkable happened and you had no surviving children or grandchildren, what would happen then? Client:  Wow, I never thought of that before. One of my favorite things about working with clients is when they surprise me and give me tools to use with other client...

 A North Star in Estate Planning December 24, 2020 By Melinda Gustafson Gervasi Estate planning attorneys spend a lot of time listening to their clients, or at least they should.  I use a flat-fee system with my estate planning clients. Doing so gives them the freedom to talk without one eye on the clock, fearful of the almighty billable hour.  And talk they do.  Telling one story here, expressing a concern there, circling back to a fact they overlooked.  During our first meeting to talk I have a completed client questionnaire, but the conversation breathes much more life into the clients wishes than a few sheets of paper. Quite often a client will open up to me which allows me to see that the client has several priorities.  This can be problematic.  Priority, defined means one thing is more important than other things.  When you have multiple priorities in estate planning the path to final documents can be convoluted, overwhelming, and sometimes ...

  Control: An Acrostic Poem By Melinda Gustafson Gervasi November 5, 2020 Not only are my children expanding their knowledge though the Madison Metropolitan School District's virtual learning this year, their daily recounts of classroom activities sparks many a memory for me.  Most recently the topic was poetry, specifically 5th graders studying Acrostic Poetry .  This writing style takes a word, such as November, and uses each letter to describe November.  My elementary school days ended in the early 1980s, however, my creative spirit survived my legal education.  Here is my attempt at an acrostic poem, for CONTROL, a concept at the heart of estate planning.  C reate documents that take effect O n your death N o uncertainties left T ake no chances R ecord your wishes O utlined on paper in a L egally binding manner Death and taxes are two certainties of our lives.  Why take chances when you can take control.  Estate planning may be a fancy soundin...

The Educator Within: When Repeating the Past Creates Roadblocks By Melinda Gustafson Gervasi March 27, 2020 Awareness hit me like a lightening blot this past Thanksgiving.  My life was upside down, literally.  We were in the middle of a kitchen remodel.  Cabinets were torn out, a sink was missing, and the crew took my old oven away.  No oven, no "traditional" Thanksgiving meal.  Yet, despite the facts in front of me I attempted to forge ahead with Thanksgiving.  The roasted turkey, mashed potatoes, green beans, and of course pumpkin pie.  Up went my creative energy.  Use a crockpot for the turkey instead of the oven, buy a pie instead of baking one, etc.  And then it melted away.  I awoke on Thanksgiving morning and realized my plan to save Thanksgiving simply wasn't going to happen, nor would it be festive or enjoyable.  I set aside the template for the holiday enshrined in my mind since my earliest memories, and called good fr...

It's 2020!  A new year.  A new decade!  A new !?!?!?  Along with signing up for gym memberships, getting an estate plan seems to be one of the top new years resolutions.  Each January we open a fresh new calendar and plan for growth and adventures.  We resolve to be more organized, to be healthier, to be on top of things.  If you are one of the many Americans making the resolution to get your estate in order, here are a few things to consider. Estate Planning boils down to control.  Who will do what, what will go where?  If you do not make the decision and put into a legal format someone else will, often dictated by state statute.  If you need a source of motivation to roll up your sleeves and take action, focus on "control"; Hire a professional.  We live in a DIY society, and that is a wonderful thing -- if you have the time, patience and skill set to complete the project appropriately.  My husband and I recently updat...

Glancing out my kitchen window early this morning, coffee in hand as I kick-started my day, I noticed "the boys" were in our driveway.  Over the summer months a flock of 5 to 7 wild male turkeys became "the boys" in our household as they made daily visits and precarious crossings of the fast moving artery on which we live.  Out of the corner of my eye I noticed my husband was set to leave for work, it was a great day for his 8-mile commute along Madison's bike paths.  Without thinking I warned "be careful when you take your bike out, when "the boys" get confused they run in circles and the last thing we need this morning is a couple of turkeys dashing into our garage!"  As we move into our 14th year of marriage my husband has grown accustomed to my dire predictions, yet today he raised his eyebrows just enough to convey "really Melinda, what are the chances?"  My standard response "Well, you married a lawyer.  I was trained ...

Busting Myths & Misconceptions: Reflections on The Grand Budapest Hotel, a Wes Cravin Film. By Melinda Gustafson Gervasi From Hollywood to Netflix to TV dramas, legal thrillers remain a popular film genre.  Recently I enjoyed watching The Grand Budapest Hotel , a Wes Craven film.  Set in a fictional remote mountain village somewhere near the borders of Germany, Switzerland, and France, it is a quirky film revolving around the owner succession of a grand hotel. There is the requisite scene for a legal drama: " the reading of the will".  From the deceased's children to her cousins thrice-removed, all assemble in a dark cavernous room, dressed in black, with an attorney at the center of attention.  Here the legal misconceptions leap off the screen: Except in limited circumstances, the attorney who drafts a will is not the Executor (or what Wisconsin law calls the Personal Representative) of the will; The will in the movie is a massive heap of papers, of wh...

Image by M.  Gustafson Gervasi, 2019 Peonies unfolding in the warm sun.  June is nearly here.  With it a memory dances in my mind.  June 1991 and my mother fussed about the peony plants that circled our back deck.  Delicate, vibrant, gone too quickly -- her wish was for those flowers to be there for my high school graduation party.  Mother nature granted mom her wish.  Peonies in full bloom were the backdrop for many photos that day. All of these years later (has it really been 28 years!) those very plants still bloom in June, just in a new location.  My mother left her earthly life in February of 2014.  Despite her passing in the depths of a Wisconsin winter, I was able to transplant the peonies from the backyard of her ranch home to the flower bed in front of my ranch house.  All it took was a simple request from the new owners for me to return when the soil had thawed. With the plethora of how-to books on estate planning, prob...

Routinely clients state "I want to make it as easy as possible on my loved ones after I am gone.  Should I do a trust instead of a will?"  My answer usually causes their head to cock slightly, not expecting my response. "It's not so much the vehicle or tool of estate planning you choose that makes things easier and less messy, it's the person you nominate to be in charge.  If the person nominated is overwhelmed, unskilled in these types of decisions, or caustic, you'll have a mess whether it's a will or a trust."  And then I see their heads nod, yes, in agreement. "Who will be in charge" becomes a critical question.  My suggestion to clients is to aim for Switzerland: who is neutral, precise, and efficient?  That may be a relative, a close family friend, or possibly an institution like a bank or accounting firm. When attempting to fill this role in your end of life affairs, picture the people you are considering doing the following:...

A significant part of my practice involves drafting testamentary trusts for parents with young children, usually aged 18 or younger.  A testamentary trust is a will that says I leave my probate assets to my spouse, but if my spouse has predeceased, then to a trust for my children.  This type of trust does not exist until both parents are deceased, and is created as part of the probate process.  It is not the same as a living revocable trust, which is created during life to hold assets while you are alive. When creating a testamentary trust parents need to name a primary and secondary trustee. This is the person (or institution) that will invest the funds in the trust, file tax returns, and decide on how the monies are spent until the trust ends.  Which leads to the next question, when does the trust end?  "Most clients write until my youngest living child reaches age 25 or 28" is what I share with my clients.  "Personally, my wills says until my youngest l...

Final meetings with my clients end with me offering them water from the fridge in the waiting room and a Frango Mint (or two) that I keep in the waiting area.  Final meetings also end with a discussion of various housekeeping items, such as safekeeping of a will and the ever important question -- when should I update my will and estate planning documents? Most clients assume I will answer with a specific number of years; seven to ten years is the most anticipated answer.  But what I actually say is the most dreaded answer I lawyer can offer, it depends. When to update a will is fact dependent more than time dependent.  Take my life for example: In 2006 I got married, and my name went from a long name to a very long name and my middle name fell away; In 2008 our son was born; In 2009 my father died; In 2010 our daughter was born; and  In 2014 my mother died. All of those events mark a time when estate plans should have been reviewed and updated to ref...

Engine of a Space Shuttle.  Image by M. Gustafson Gervasi, 2015 "Which is faster, a will or trust?  I just want my family taken care of as soon as possible."  After ten years of serving clients in the estate planning capacity, this is one query that tops of the list of client questions. My answer is often not expected. "Honestly, whether you use a will or a trust, it doesn't matter. What matters is how organized you are with your final affairs, and more importantly, how organized the person is who you appoint to handle things when you died.  If the person you appoint is crippled with grief, overwhelmed in their own personal life, or simply is an indecisive procrastinator -- then your estate will creep along at a snails pace, trust, will, whatever device you use just doesn't matter." Personally, I think trusts are a bit oversold.  Here in Wisconsin we have a low probate fee, 0.2 percent of the inventory value.  Other states can be as high as 8.0, 10...

Image by M. Gustafson Gervasi, 2015 "Show of hands, who here does not have a will?"   A standard question I pose to audiences when asked to speak on the basics of estate planning.  Usually one-third to half of the audience raises his or her hand indicating that no, they do not have a will. A recent reported stated that while 69 percent of Americans have given serious consideration to setting up a will, only 34 percent actually have a valid will .  And of those that know it is important, but have not acted, 95 percent say it is because they lack the financial know-how, and not that that topic of death is too taboo. Even as an estate planner the 34 percent shocked me, I would have guessed about 48 to 49 percent of Americans have not created a will.  But I would disagree with the wording in the report that only 34 percent of Americans have a will.  Here is why: "Guess what, those of you with your hands up -- you do have a will.  One the State Legislatu...

Image by M. Gustafson Gervasi, 2015 Back in July, as irises still bloomed in my garden, I sipped a coffee and glanced at our local free weekly paper The Isthmus .  A story on page 6 caught my attention -- America's longest-serving state legislator, Fred Risser , and his wife Nancy Risser, were profiled for creating an urban oasis in downtown Madison.  Over the years the couple worked to turn an apartment complex parking lot into a lush and welcoming garden.  Towards the end of the article a nugget of estate planning insight jumped off the page -- the bequest of perennials. Nancy is quoted as saying "A garden is a living thing" after she recounted transplanting iris bulbs from her late-grandmother's home in Texas to the garden here in Madison -- the transplant spurred by Nancy's father's death.  While the focus of this article was about creating and fostering natural beauty in an urban setting, the estate planner in me saw the often overlooked bequest -...

It never fails.  New clients walk into my office and sit down for our first meeting of the estate planning process.  Once the initial hellos are finished and the legal services agreement reviewed and signed, we get down to business.  Nine times out of ten I hear "oh, this will be simple, we are a solid middle class family." Instantly this Shaker song pops into my mind (one I adore and delight in signing at our UU church). The song makes me smile, such a happy little ditty.  The client(s) is smiling, thinking this will be simple because they do not have tons of assets, just the normal amount of a normal person or couple here in the heart of the Midwest. A glance at their questionnaire and the tune fades from my mind, replaced by something for chaotic. Something more ominous.  Something that is anything but simple. Something along these lines: Why the change in background music?  It's simple really.  Money is not what makes estate planning co...