Intestacy Laws: What Happens if you Die Without a Will in Wisconsin?

It’s normal to go about your life without thinking about your death. But planning for the unexpected can prevent you from wondering if there is no will, what happens to your assets, your finances, and even your children when you pass away? That’s where estate planning attorneys come in, helping families avoid fear and confusion after someone dies.

When you die without a will in Wisconsin, the process of determining what happens to your assets can be complicated. Wisconsin has what are called “intestacy laws” that dictate how a person’s assets are distributed when they die without a will. In this blog post, we will dive deep into what happens when you don’t have a will, including intestacy laws and the various factors that come into play when determining who inherits your assets. We will also talk about other rules that apply to intestate estates in Wisconsin, and we’ll provide some tips on how to avoid Wisconsin intestate succession altogether by creating a will.

If you have any questions after reading this blog post and live in southeastern Wisconsin, please don’t hesitate to contact me, Paul Margerie, an experienced estate planning attorney. I’d be happy to help.

Summary:

1. How Assets Pass Without a Will
2. What Is Probate?
3. Who Inherits Your Assets?
4. Who Will Not Inherit Your Assets
5. Spousal Inheritance
6. Children’s Inheritance
7. Non-Probate Assets
8. Other Issues From Passing Without a Will
9. Additional Considerations For Crafting A Will
10. Have Questions? Contact Margerie Law Today

1. How Assets Pass Without a Will

If you die without a will in Wisconsin, any assets you have that are subject to probate will pass according to what are called “intestacy laws.” These laws dictate to the court how a person’s assets are to be divided among their surviving spouse and descendants. This is also sometimes referred to as “intestate succession,” essentially meaning the state will decide who gets your assets instead of you deciding through a will.

Different states have different intestacy laws, so it’s important to be familiar with Wisconsin’s intestate succession laws or find an estate planning attorney who can help you navigate the intricacies involved.

2. What Is Probate?

Probate is the legal process of settling a person’s estate after they pass away. It includes validating the will (if there is one), gathering and managing assets, paying debts and taxes, and distributing any remaining assets to heirs. Wisconsin probate law can take anywhere from a few months to more than a year depending on the complexity of the estate.

3. Who Inherits Your Assets?

If at all possible, when you pass without a will, the courts will attempt to ensure your assets pass to your surviving relatives. There is a priority listing of relatives that a court would use to determine who should inherit; if someone at the top of the list is dead or does not exist, they would move down the list. Surviving spouses and children are at the top of the list, but if you don’t have these a court will move to grandchildren, siblings, parents, grandparents, nephews/nieces, aunts/uncles, and cousins.

If you die without a will and have no existing relatives that the court can find (and they will try very hard), your assets will pass to the state.

4. Who Will Not Inherit Your Assets

It’s important to note that if you die without a will in Wisconsin, certain people will not inherit your assets. This includes any stepchildren or foster children, as well as unmarried partners, no matter how long you’ve been together. Wisconsin intestacy laws only apply to legal relatives such as spouses and blood relatives.

5. pousal Inheritance

Spousal and/or registered domestic partner inheritance depends on several factors. Wisconsin is a marital property state, meaning most property acquired during a marriage is jointly owned by married persons. Then there is separate property: that which was acquired before marriage and any gifts or inheritance that one spouse acquired during the marriage. If you die without a will, your surviving spouse inherits everything…with one important caveat. If you have children or descendants from a previous relationship, those children inherit your share of the marital property and half of your separate property.

One exception to this rule, according to Wisconsin inheritance laws, is if you and your spouse owned a home. In this case, the spouse has the right to inherit the home but may have to petition the court and/or buy out a share from surviving children. For questions on this, contact Margerie Law today.

6. Children’s Inheritance

If you die without a will, your children are eligible to receive a share of your assets. How much they receive depends on whether you have a surviving spouse, whether they are the children of that spouse or from a previous relationship of yours, how many children you have, and more.

There are a few special circumstances of inheritance laws in Wisconsin that apply to children’s inheritance, including:

• Adopted children: Legally adopted children will receive the same share as biological children. Foster children, if they have not been legally adopted, are not eligible.
• Children born outside of marriage: If your paternity has been legally defined, or you have otherwise acknowledged the child as your own, they are eligible to receive an intestate share of the inheritance.
• Children born after your death: If you have a biological child who is born after your death, they are eligible to receive an intestate share of the inheritance.
• Stepchildren: Unless you’ve legally adopted your stepchildren, they are not eligible to receive an intestate share of the inheritance from you.

7. Non-Probate Assets

It’s important to note that not all assets are subject to probate – meaning they will pass directly to a designated beneficiary without going through the intestacy process.

These non-probate assets include:

• Property held in joint tenancy: If you hold property under a joint tenancy with right of survivorship, the surviving owner automatically inherits your share upon your death. This is true for real property (like a house) and personal property (like a bank account).
• Payable-on-death accounts: If you have payable-on-death (POD) designations on your financial accounts, the designated beneficiary will inherit those assets outside of probate.
• Retirement accounts and life insurance policies: Any assets in these types of accounts will pass directly to the beneficiaries designated in the accounts, regardless of what your will or intestacy laws say.

To better understand this process, click here to read part two of this blog series: Intestacy Laws: Understanding Probate & Asset Distribution.

8. Other Issues From Passing Without a Will

Guardianship

If you pass without a will, the court still needs to determine who will be the guardian of any minor children. If a surviving parent is available and fit, they will retain guardianship. Otherwise, if both parents have passed or are otherwise unable to act as guardians, the court will appoint someone else. Keep in mind that this person may not be who you would have chosen to raise your children, making it important to name a legal guardian for them in your will.

Funeral & Burial Arrangements

If you have specific wishes for your funeral or burial arrangements, it’s important to include them in your will. Otherwise, the decision typically falls to the closest surviving relative. However, by including these instructions in your will, you can ensure that your wishes are carried out and potentially prevent any family disagreements over these matters.

9. Additional Considerations For Crafting A Will

Making a will is an important step in ensuring that your final wishes are carried out and your loved ones are taken care of after you pass away. However, there are some additional considerations to keep in mind when crafting a will.

• Choose a reliable executor: Your chosen executor (or personal representative) will be responsible for managing your estate and carrying out your wishes according to your will. Make sure to choose someone who is trustworthy, organized, and able to handle the responsibilities.
• Update it regularly: Life changes, such as marriage, divorce, or the birth of children or grandchildren, may require updates to your will. It’s important to review and make necessary changes regularly to ensure that your will is always up-to-date with your wishes and current laws.
• Consider creating a trust: Depending on your assets and goals for distribution, you may want to consider setting up a trust to protect your family’s assets in addition to a will. A trust allows for more control over how and when assets are distributed, as well as potential tax benefits.

10. Have Questions? Contact Margerie Law Today.

As you can see, intestacy laws can be complicated. The best thing you can do to avoid this complexity is make a will. I’m Paul Margerie, an experienced estate planning lawyer working with people in Milwaukee, Brookfield, Wauwatosa, Elm Grove, Waukesha, and beyond. I can help you create or update your will, trust, powers of attorney, and more. Contact me today with questions or to schedule an appointment.

By Paul Margerie, Owner of Margerie Law

Paul Margerie of Margerie Law is a knowledgeable and experienced estate planning attorney based in Wauwatosa, WI. With years of experience helping families and individuals with their estate plans, he offers a gentle touch that puts his clients at ease. He understands the sensitive nature of this work and ensures that all details are taken care of with precision and accuracy. He strives to help each client achieve peace of mind that their future is protected by providing personalized advice and creating tailor-made solutions that fit their individual needs.