Estate planning isn’t exactly a favorite dinner table topic, but avoiding the conversation doesn’t stop the clock. While the legal complexities of wills, trusts, and probate can feel overwhelming, staying proactive is the only way to protect your legacy.
Recent data shows that only 32% of American adults have a will, leaving the vast majority of estates at the mercy of state law. If you are asking, “What happens if you die without a will in Wisconsin?” the answer lies in a rigid legal framework called “intestate succession.”
Without your own plan, Wisconsin Statutes Chapter 852 primarily governs how your assets are divided, often in ways you wouldn’t expect.
Understanding “Intestacy” in the Badger State
When a person passes away without a valid will, they are said to have died “intestate.” In this scenario, your personal preferences regarding who gets your vintage car, your family farm, or your savings account are set aside. Instead, the Wisconsin Statutes Chapter 852 takes over, providing a rigid formula for asset distribution.
The probate court will appoint an administrator (often called a personal representative) to oversee the estate. While this person’s job is to pay debts and distribute assets, you lose the power to choose who that person is.
In most cases, your estate must still go through the probate process, which can become more expensive and time-consuming as the court works to identify every legal heir.
Who Inherits What? The Intestate Formula
Wisconsin is a community property state (specifically, a marital property state), which complicates how assets are divided if you don’t have a will. Generally, your assets are distributed to your “closest” relatives in a specific hierarchy:
- Spouse, No Children: Your surviving spouse inherits everything.
- Spouse and Children (All from that spouse): Your spouse still inherits everything.
- Spouse and Children (From a previous relationship): This is where it gets complicated. Your surviving spouse typically keeps their half of the marital property and inherits half of your individual property. Your children from the previous relationship then inherit your half of the marital property and the other half of your individual property.
- Children, No Spouse: Your children inherit everything in equal shares, per stirpes (meaning if a child has passed away, their share goes to their own children).
- No Spouse or Children: The estate moves to your parents. If they have passed, it moves to your siblings, then grandparents, and so on.
If the state cannot locate any living relatives—even distant cousins—your property may eventually “escheat” to the state, specifically to the Wisconsin School Fund.
The Issues of Dying Without a Will
The “default” plan provided by Wisconsin law is designed to be fair, but it rarely accounts for the nuances of modern life.
1. Guardianship of Minor Children
Perhaps the most significant risk is the lack of a named guardian. If you have minor children and both parents pass away without a will, the court—not you—decides who will raise them. This can lead to painful family disputes and may result in your children being placed with someone you wouldn’t have chosen.
2. Protection of “Non-Traditional” Heirs
Wisconsin’s intestacy laws do not recognize close friends, stepchildren (unless legally adopted), or favorite charities. If you wanted to leave a portion of your estate to a lifelong partner you never married or a cause you care about, they will receive nothing without a formal will or trust.
3. The 120-Hour Rule
According to Wisconsin Statute 854.03, a person must outlive you by at least 120 hours (5 days) to inherit. If you and an heir are in a tragic accident together, these survival requirements can drastically change who ultimately receives your assets.
What Does Probate and Estate Administration in Wisconsin Manage?
When a person dies, their estate must go through the probate process. Probate is the legal process of transferring a person’s assets to their heirs. The probate court will appoint an executor to oversee the estate and make sure that all debts and taxes are paid.
The executor will also distribute the assets to the heirs according to the person’s wishes, or the state’s formula.
Our experienced estate team can help you manage a probate or other estate administration and guide you with care and consideration to help achieve the best outcome for you and your family. We offer estate planning and related services, including:
- Estate and Probate Administration
- Wills and Trusts
- Elder Law
- Guardianship and Conservatorship
- Business Succession Planning
Set Up a Secure Will or Trust With a Wisconsin Estate Planning Attorney
Estate planning typically involves the creation of a will and/or a trust. A will is a document that specifies how you want your assets to be distributed. A trust is a legal entity that holds your assets and distributes them according to your wishes. Properly funded trusts can help avoid probate entirely and protect your assets from creditors.
In the estate planning realm, trusts are becoming an increasingly common tool for the management, protection, and distribution of assets. Our attorneys can help you form, fund, and administer a wide variety of trusts, ranging from simple revocable trusts to more complex irrevocable trusts.
Secure Your Legacy with Bakke Norman
The experienced estate and probate attorneys at Bakke Norman are committed to protecting you and your family’s posthumous wishes. Our attorneys can help you manage taxes, avoid probate court battles, settle disputes between heirs, and more. Don’t leave your family’s future to a state formula.