Expertise.com

Wisconsin Inheritance Laws

Expertise.com Staff Profile Picture
Written By:

Having a valid will is a typical way of specifying the desires of an individual for the division of their assets after they pass away. But even with the purest intentions on the part of the testator to convey their wishes after their death, family disagreements over estate planning documents are common. These disputes may arise due to competing personal interests, alleged unfairness, and vague language in the documents. 

On the other hand, if an individual does not leave a will for their surviving family members, those loved ones may find themselves facing legal problems in the future. Take a look at the estate of Clarence E. Klawitter

In 2021, Clarence passed away without leaving a legitimate will. Due to the inheritance, his daughter, Carla, had to deal with a number of legal issues. For instance, in the course of probate, the estate disputed Carla's right to the money in two joint accounts in the names of Carla and Clarence.

If you’re facing the same situation as Carla, this article could help you find a legal solution. It gives an overview of inheritance laws in Wisconsin. These include the process of creating and proving a will and the inheritance rights of surviving family members if the decedent did or did not leave a will.

What Happens if Someone Dies With a Will in Wisconsin?

When a person passes away with a will in Wisconsin, the estate will be categorized as “testate.” This implies that the executor or personal representative (the individual managing the decedent’s state) will receive instructions regarding the distribution of the testator’s possessions.

In Wisconsin, anyone who is at least 18 years old and has a sound mind may create a will. A valid will must be:

  • In writing.

  • Acknowledged or signed by the testator (the person writing or creating the will), in the presence of at least two witnesses.

  • Signed by the witnesses.

Keep in mind that legal heirs or beneficiaries named in the will are disqualified from being witnesses to the will.

It is not required that a will be notarized to be valid in Wisconsin. But a notarized will is self-proving, meaning the court will accept it without requiring correspondence from the witnesses who signed the will, expediting the probate process. Probate is the court-supervised process of transferring the assets of a deceased person to individuals who are legally entitled to them.

When having a will notarized, the testator and their witnesses must appear before a notary public and sign an affidavit attesting to their identities and their knowledge that they are executing the will. The affidavit needs to be signed in front of a representative who is qualified to administer oaths under state law.

An individual is not required to hire an estate planning lawyer when creating their will. However, if they believe that their will could be contested in the future, an estate planning attorney can provide the appropriate legal advice.

If a testator leaves a will in Wisconsin, any individual who is not the testator’s designated personal representative must either deliver the will to the designated personal representative or submit the will to the appropriate court within 30 days of knowing the testator’s death.

Probate

Wisconsin Statute Chapters 851 to 882 regulate proceedings in the probate court. In Wisconsin, estates valued at $50,000 or more must go through probate. This means the assets cannot be given to the people named in the will until the court verifies the will is valid.

However, not every testate asset needs to go through the probate process. The following assets are exempt from probate:

  • Small estates, which refer to estates that are less than $50,000 in value.

  • Transfer-on-death and payable-on-death accounts.

  • Assets held in a trust.

  • Property owned in a shared tenancy.

Contesting a Will

Contesting a will in Wisconsin entails questioning the authenticity of its contents. Not everyone, however, can contest a will’s legitimacy. A party seeking to contest a will must have legal standing. The following individuals have legal standing to contest a will:

  • A named beneficiary under a prior will or the present will.

  • Individuals who, though not named as beneficiaries in any will, would have received a share of the inheritance if the deceased had died without a will.

  • Other parties, like former relatives or ex-spouses, as determined by the court.

People in Wisconsin challenge a will for a variety of reasons, such as the following:

Lack of Mental Capacity

A will may be invalidated if evidence shows the person lacked the required mental capacity when they created it.

Undue Influence or Duress

Will challenges may result from claims that the decedent signed the document while subjected to undue duress or influence. Being under undue influence or duress refers to when a person who spent time with the deceased used their influence to change or modify the will.

Unclear Terms in the Will

Disputes among beneficiaries may arise if the terms used in the will are inaccurate, unclear, or not specific.

Fraud

Fraudulent creation of the document or signatures on a will might render it invalid.

In Wisconsin, a will contest may be filed at any time before the will is admitted into probate. It is advisable to consult with an experienced Wisconsin probate lawyer because contesting a will will likely result in litigation. Should a will contest succeed, the invalidated will will not be probated. Instead, the court will probate any previous legitimate will that may have existed.

What Happens if Someone Dies Without a Will in Wisconsin?

A person loses authority over anything that happens to their belongings after their death if they pass away without a valid will in Wisconsin. Wisconsin inheritance laws categorize estates without a will as “intestate.”

Wisconsin intestate succession laws specify the heirs who are entitled to the intestate in an established sequence. The surviving spouse or domestic partner usually comes first, then the kids, parents, siblings, and lastly, the more distant relatives in the event that no immediate relatives are still alive.

Even if a person dies without a will, their property, unless exempt, must go through probate to decide who will receive the assets. The following are the general steps in the probate of an intestate property in Wisconsin:

1. Submission of petition to the probate court: The submission of a petition for the opening of probate in the county of the decedent’s residence marks the start of the probate process in Wisconsin. 

2. Designation of an administrator: The court will appoint a qualified individual as the administrator of the estate. It is usually a relative, a trust company, or a financial institution. This person is in charge of managing the estate during the probate process.

3. Estate’s inventory and appraisal: The estate’s assets, such as stocks, real estate, and other valuable possessions, must be listed by the administrator and appraised by a professional to determine the entire value of the estate.

4. Settlement of estate’s debts and taxes: All outstanding debts and taxes of the deceased must be settled first before the estate can be divided among the beneficiaries. Administrators may be held personally accountable for unpaid debts or taxes of the estate, so they must ensure that these bills are paid in full. 

5. Division of estate’s remaining assets: Following the payment of debts and taxes, Wisconsin's intestacy statutes will govern the distribution of the assets.

Spousal Rights

If a married person dies intestate in Wisconsin, the surviving spouse will inherit everything — meaning both community and separate property — unless the decedent has children or descendants from a previous relationship.

If the decedent has offspring or other descendants from prior marriages, the surviving spouse will receive only half of the decedent’s separate property. The other half will go to the offspring or other descendants, along with the decedent’s share of the community property. 

However, even if the decedent has children from previous relationships, the surviving spouse will be entitled to inherit a house, provided that they already reside in or plan to reside in that house. In order to exercise this privilege, the spouse must submit a petition to the court and pay for any interests that are to be shouldered by the descendants.

Registered domestic partners in Wisconsin are subject to the same regulations as married individuals.

Children’s Rights

The following are the inheritance rights of children in Wisconsin if the decedent leaves no will:

Offspring by birth

A share of the intestate estate will automatically go to the biological children of the decedent.

Adopted children

Like biological children, children that the decedent legally adopted will get a portion of the intestate estate.

Grandchildren

A grandchild’s share will only be given if their parents are already dead or not around to accept the portion.

Infants born out of wedlock

If, at the time of the child’s birth, the decedent isn’t married or in a registered domestic partnership with the mother of the child, the child may be entitled to a portion of the estate if:

The decedent admits their paternity in writing.

The decedent’s paternity is established under Wisconsin law.

The decedent acknowledges in court that they are the child’s father.

Posthumous children

Shares will be awarded to children who were conceived by the decedent but were not yet delivered before their passing, provided that the child lived for at least 5 days, or 120 hours, after birth.

Children given up for adoption

If the decedent gives up the child for adoption and they are legally adopted into another family, the child will have no share in the intestate estate.

If it’s the decedent’s surviving spouse who adopted the child, then the child will receive their intestate inheritance. 

Stepchildren and kids from foster care

Stepchildren and kids from foster care that the decedent had never officially adopted will not get a share.

The Rights of Other Surviving Relatives

The following family members will receive the assets of an estate if the deceased leaves no valid will and any surviving spouse, children, or other descendants:

  • If the decedent’s parents are still alive, they will inherit everything.

  • If the deceased has surviving siblings but no parents, the entire estate will be given to the siblings.

Estates With No Heirs

The state of Wisconsin will take possession of the decedent’s property if they pass away without a will and without any surviving family members or other relatives. However, this situation rarely occurs because the inheritance laws in Wisconsin are structured to allocate the assets of the estate to any person who is even slightly related to the deceased.

Unique Situations in Wisconsin Inheritance Law

In accordance with Wisconsin inheritance laws, a beneficiary of an estate has to stay alive for at least 5 hours or 120 hours after the decedent’s death to be entitled to the inheritance. However, this rule will not apply if it results in a situation in which the state will have to take the estate property. Wisconsin inheritance laws also provide the following rules for certain unique scenarios:

Posthumous family members

Family members who are conceived prior to the death of the decedent but are born afterward will get a portion of the inheritance at the same rate as if they were born during the decedent’s lifetime.

Killer of the decedent

If a relative kills the deceased with intent or against the law, they will lose their portion of the estate.

Gifts

If a relative receives property from the decedent as a gift, the value of that gift will be subtracted from the relative’s share if:

The relative acknowledges in writing that they received the gift.

There is evidence that the decedent admitted in writing that they gave the relative the property.

Immigrants

Even relatives who are illegally residing in Wisconsin are eligible to receive a share of the estate.

Half-blood family members

A portion of the estate may be awarded to half-relatives, such as stepsisters or stepbrothers.

Does Wisconsin Impose Inheritance and Estate Taxes?

There is no inheritance or estate tax in Wisconsin. However, estate tax may be payable if the beneficiary is receiving property from a state where estate tax is charged. Furthermore, federal estate tax may be payable if the estate is sufficiently large. The federal estate tax return is due nine months after the person’s passing; however, a six-month extension may be granted if it is requested before the nine months are up.

Despite the absence of inheritance or estate taxes in Wisconsin, the executor of the estate is still responsible for handling a wide range of potential tax scenarios, including:

Resources Related to Inheritance Law in Wisconsin

Wisconsin State Law Library

The Wisconsin State Law Library is the first library in the entire state of Wisconsin. Its goal is to provide the legal information needs of court officers, government workers, lawyers, and the general public while promoting equitable access to the legal system. People can get in touch with the main library from Monday to Friday, 8:30 a.m. to 4:30 p.m., in any of the following ways:

University of Wisconsin Law School Library

Residents can obtain research guides from the University of Wisconsin Law School Library. It provides printed materials, such as books, treatises, journals, and articles, about wills, estate planning, and probate. It contains online materials and electronic form books with sample wills and estate planning documents. It additionally contains drafting forms for creating wills and probate documents. 

The University of Wisconsin Law School Library is located at 975 Bascom Mall, Madison, WI 53706. Individuals may contact 608-262-1128 (Circulation Desk) or 608-262-3394 (Reference Desk).

Wisconsin Court System

A self-help legal center is available to the public through the Wisconsin Court System. It provides a handbook created by the Wisconsin Register in Probate Association with information on Wisconsin probate procedures. Additionally, it contains the court forms necessary for Wisconsin probate proceedings. The Wisconsin Court System aims to uphold the rule of law, safeguard individual rights and liberties, and offer a fair, easily accessible, impartial, and efficient forum for the settlement of conflicts.

Share

Expertise.com Staff Profile Picture

Expertise.com StaffAuthor

Step into the world of Expertise.com, your go-to hub for credible insights. We don't take accuracy lightly around here. Our squad of expert reviewers, each a maestro in their field, has given the green light to every single article you'll find. From rigorous fact-checking to meticulous evaluations of service providers, we've got it all covered. So feel free to dive in and explore. The information you'll uncover has been stamped with the seal of approval by our top-notch experts.