Wisconsin's Inheritance Laws

The intestacy law sets forth the order of eligibility in which a decedent's family will inherit his estate if he dies without a will. Under Wisconsin Statute 852.01(1)(a)(1), the surviving spouse can inherit the entire estate if the decedent is not survived by any children. If the decedent did have children, Statute (1)(a)(2) allows the spouse to inherit all of the marital property (anything she and the spouse acquired during the marriage) and half of all other property. The children will inherit equal shares of the balance of the estate.

Under (1)(b), if there are children but no spouse, the children when inherit equal shares of the entire estate. The parents are the next eligible beneficiaries under (1)(c). Statute 852.01(1)(d) permits siblings to inherit next if they are the closest living relatives. If the decedent is not even survived by more distant relatives, like nieces and nephews or cousins, the estate escheats or passes to the state and is added to Wisconsin's school fund.

Not all property can be willed to a beneficiary. If the decedent owned any property jointly with one or more other people, his percentage of ownership automatically passes to the surviving owner in equal shares. For example, one owner would receive the decedent's entire half-share, making him a sole owner. If there were two other owners, each would receive half of the the decedent's one-third interest.

In addition to jointly owned property, marital property cannot be willed. If the spouses purchased the marital residence, opened joint bank accounts or acquired any other property during the marriage, the surviving spouse is entitled to inherit the decedent's share of the marital assets automatically. Any will provision attempting to name a different beneficiary is invalid and will not be honored by the probate court.

In Wisconsin, a person who makes a will, the testator, must be a minimum of 18 years of age. She must also be "of sound mind," meaning mentally competent and able to make decisions without any undue influence. Her will must be typed. Oral wills (also known as nuncupative wills) and handwritten wills (also called holographic wills) are not valid and cannot submitted for probate.

When a testator's will is completed in accordance with his wishes, he must sign it at the end of the document. Any provisions that appear after the signature are not considered a part of the will and will not be honored. The testator must sign his will in the presence of two witnesses. The witnesses must also sign the will. It does not need to be notarized in Wisconsin, but if the testator signs in front of a notary, who must affix her seal and also sign, the will is "self-proving." A self-proving will is easier to probate because a court will accept it without the need to contact the witnesses to confirm the will's validity.