What Happens When You Die Without a Will?

Have you considered what will happen to your loved ones if you die? It’s a bleak thought, but one that needs to be considered.

Death is already hard enough on family members, but if you die without a will, it can make the process even more difficult. Wills are useful because you can communicate your intentions on how you want your possessions handled after your death. 

Even if you think your estate is small or you only intend to name one beneficiary, you need to have a will. Unforeseen problems can arise if you die without leaving a will behind. Keep reading to learn what some of these problems are and how they can affect your loved ones.

What is Intestacy?

Intestacy is what occurs when a person dies before creating a will. If you die without a will, all of your assets are frozen. The court will then review everything in your estate.

Once this is complete, the court will apply the state’s intestacy laws to determine who receives your assets.

Intestacy laws differ by state, so the primary recipient of assets will vary based on where you live. If you put off making your will, this could lead to additional stress for your loved ones. This can include waiting on the courts for months while they review your assets or even arguments among family members.

Divorce and parental disputes may change your opinion of who you want to be your beneficiaries. If your estate goes into intestacy, family members you don’t care for may end up as your beneficiaries. 

You can view Wisconsin’s intestacy laws to see who would be your primary beneficiary without a will.

If You Die Without a Will While Single 

If you are single and without children, generally, your parents will inherit your estate. If your parents are deceased, your siblings will inherit your estate.

If you are single with children, then your children will typically inherit equal shares of your estate. If any of your children have died but had children, your grandchildren will inherit that share of your estate.

Married With No Will

If you are married without a will, then your estate could go to your spouse.

This can be complicated if you are divorced and remarried but have children from both marriages. Intestacy laws can make this situation more complicated, as well.

Domestic Partnerships and Unmarried Couples

Domestic partnerships are a little tricky in Wisconsin. If you and your significant other filed for a domestic partnership before April 2018, you have nothing to worry about. However, since then, Wisconsin does not allow couples to file to become domestic partners.

Generally, domestic partners have the same rights as a spouse. This includes the way jointly-owned property is allocated.

The same considerations do not apply to unmarried couples. Marriage provides legal rights to couples that come into play in these types of situations. 

The two of you may love each other very much, but the estate will defer to family first. This can cause problems for your significant other if you want them to inherit anything that you have. 

If you do not have plans to get married but want to make them a beneficiary, there are some preparations to consider.

Family Disputes

Even with a will, the way you allocate your estate may leave some family members unhappy. Dying without a will can make your death infinitely more stressful for the ones you leave behind.

In estate disputes, greed is rarely the primary reason why families end up fighting. These issues typically have their roots in the way families interacted with each other before a loved one’s death. Some examples of these situations include the children of a parent’s separate marriages or siblings with large age gaps. 

The death of a loved one is an unbearable time for a family that doesn’t have to be exacerbated because there is no will. 

If you want certain family members to inherit specific pieces of your estate, wills were designed especially to handle these matters. Taking the time to speak with a lawyer and plan your estate can save your family from undue stress once you are gone.

Family Law, Estate Planning, and More

If you found this guide on what happens if you die without a will helpful, our attorneys at Neuberger, Griggs, Sweet, & Froehle, LLP can assist you with your estate planning. We also have experience in many other areas of law, like family law, landlord/tenant law, criminal law, and many more.

If you have any legal concerns, contact us, and one of our attorneys will be able to assist you.

With or Without a Will: What Is Probate and How Does It Work?

Talking about probate and someone’s Last Will and Testament can often seem like a morbid and taboo subject. However, it’s important to know about these matters so that you and your family can be as prepared as possible when dealing with an estate. 

So what is probate? And how does it affect an estate and the estate’s beneficiaries? Keep on reading and we’ll take you through everything you need to know!

What Is Probate?

Probate is the process of authenticating the last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets as well as paying their final taxes and bills. Also, the remainder of the estate is distributed to the proper beneficiaries. 

The probate process is supervised by a court. 

When Is the Probate Process Required?

There are specific laws in every state that determine what’s required to probate an estate. You can find these laws in the estate’s “probate codes.”

In Wisconsin, any estate that’s valued at more than $50,000 will have to go through the probate process. The probate process can sometimes be avoided if the estate is subject to certain exemptions. 

Some of these exemptions include life insurance proceeds, assets that are titled jointly with another individual, and any retirement fund where a beneficiary was chosen. Also, assets that are placed in a revocable living trust don’t have to go through the probate process.

If there isn’t a will, then the probate process will still be needed to pay the final bills of the deceased and to distribute their estate. The steps that are involved tend to be similar, whether or not there’s a will. 

Appointing the Personal Representative

A personal representative of the estate will be appointed by a judge. This personal representative is also sometimes called an administrator or an executor . This person will oversee the probate process and they will settle the estate. 

Usually, the decedent will include their choice for the personal representative in their will. If they don’t appoint someone in their will, then the court will usually choose the next of kin. This tends to be the surviving spouse or an adult child.

The individual isn’t obligated to serve as the personal representative and they can decline the position. 

The appointed personal representative will be given documentation that allows them to enter into transactions on the estate’s behalf. This documentation is referred to as “domiciliary letters.”

Identifying and Notifying Creditors

The creditors of the deceased will have to be identified. They will then need to be notified of the death. 

Because it may not be possible for the personal representative to know about all of the creditors of the deceased, they will have to post a notification of the death in a local newspaper. In this notification, they will have to include the name, birth date, and death date of the deceased. 

The personal representative will also need to include the name of the county where the probate estate is being opened and the deadline for filing any creditor claims. 

The personal representative has the ability to object to claims made by a creditor if they believe that the claim isn’t valid. The creditor can then petition the court and have the probate judge determine if the claim needs to be paid. 

Valid claims made by creditors will have to be paid. The personal representative will use funds from the estate to pay off all of the final bills and debts that the deceased left behind. This includes bills that might have been incurred during the final illness.  

Distributing the Estate

When all of the steps in the probate process have been completed, the personal representative will then be able to petition the court for permission to distribute what’s left of the decedent’s assets. These assets will be given to the beneficiaries who are named in the will. 

This may require permission from the court. The personal representative may only distribute after they have prepared a full accounting of every financial transaction that they’ve undertaken throughout the probate process. 

The personal representative needs to list and explain every expense that was paid and all of the income that was earned by the estate. Forms can be provided to the personal representative in order to make this process a bit easier. 

If the will lists minors as beneficiaries, the personal representative also might be in charge of setting up a trust to take possession of these bequests. This is because minors aren’t able to own their own property.

Sometimes, with adult beneficiaries, deeds and other similar documents have to be drawn up and filed with appropriate state officials in order to finalize the bequests.

“Intestate” Estates

An intestate estate is an estate where the deceased didn’t leave behind a valid will. This is either because their will wasn’t considered to be valid by the probate court or because one was never created. 

The main difference is that because there is no valid will, the decedent’s last wishes can’t be obliged. The estate will then have to pass to the closest relatives in an order determined by the law. 

The Importance of Knowing About the Probate Process

Hopefully, after reading the above article, you now have the answer to the question – “what is probate?” By knowing what probate is and how it works, you’ll be able to prepare your estate or the estate of a loved one. 

Are you looking for legal guidance with estate planning? Contact us today and see how we can help you! 

Dying Without a Will: 4 Things to Know in Wisconsin

dying without a will

When someone dies without a will, the question eventually is asked, “who receives the deceased’s estate?” Wisconsin has  intestacy laws that dictate who receives the deceased’s assets when there is no will. (This is one of the key reasons to draft a will; a person can name beneficiaries to receive assets.) This post highlights key points that family members should know about the situation when a person dies without a will. For information specific to the exact situation, consult an  experienced estate planning lawyer.

The exact distribution of the assets depends on the spouse and descendants.

When a deceased person is survived by a spouse and descendants, it is important to know the difference between community and separate property. Community property applies to assets acquired during the marriage (with a few exceptions). Separate property might include assets acquired before the marriage or by inheritance.

There are several inheritance situations that apply when a deceased’s spouse and children are alive:

  • If there is only a spouse, the probate estate goes to the spouse.
  • If the descendants are the deceased’s and spouse’s, the probate estate goes to the spouse.
  • If the descendants are the deceased’s, but not the deceased’s and spouse’s, the probate estate is split between the spouse and the descendants.

Descendants eligible to receive the deceased’s estate include biological and adopted children. Stepchildren not legally adopted by the deceased and biological children adopted by another party are not included in the estate distribution.

There is a procedure for situations where the deceased is not married.

When the deceased is not married and does not have any descendants, there are two common inheritance situations:

  • If the deceased is survived by their parents, the parents inherit the probate estate.
  • If the deceased is not survived by their parents but is survived by their siblings, the siblings inherit the probate estate.

There are exceptions to these situations, such as if a relative intentionally causes the deceased’s death or does not live 120 hours after the deceased’s death. To see if other exceptions apply, you should speak to an experienced estate planning lawyer.

Some assets may not be included in the estate.

Not all assets are part of the inheritance. If the asset is part of a living trust or is an asset with a named beneficiary, the asset goes to the named beneficiary. Some real estate, 401Ks, and other accounts may not follow intestate succession.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

Estate Planning Tips for the New Year

Estate planning worksheet for writing a willThe New Year is the logical time for financial planning and estate planning.  After all, the start of the New Year is an ideal time to look forward and plan for the future.  Estate planning is the essence of planning for the future, both for you and your heirs.  You can make a very difficult time easier for them now—if you follow these tips.

Don’t wait.

This is one of the most common mistakes people wait: they wait too long to plan for the future.  Unfortunately, procrastination adds stress to their family and friends during an already tough time.  If your New Year’s resolution is to establish an estate plan for the future, don’t wait to consult a lawyer.

Make sure it’s legal.

As tempting as it is to jot down a few wishes on a piece of paper, a worthless document can cause more problems for your heirs during an already stressful time—and cost them more money.  To create a legally-binding estate planning document that eliminates any questions when you’re not there to answer them, contact an experienced lawyer who is knowledgeable in your state and local regulations.

Don’t just file your will away.

A will is not a static document; instead review and update your will when you add more members to your family, your marriage circumstances change, there is a death of a beneficiary, or significant changes in assets.  Ask your attorney for any other circumstances that would dictate a change in your legal estate planning documents.   

When your will is updated, avoid filing your estate planning documents in a safe deposit box.  If you put your will in a safe deposit box, you can make the process more costly and complicated for your family.  Your family may have to get a court order to gain access to the safe deposit box.  Instead, choose a fireproof, protected container for your document or ask your attorney for other recommendations for document storage.

Think beyond just drafting a will.

Many think of a will as a catch-all document with stipulations for almost any situation; actually, a will’s only purpose is to dictate the distribution of your assets when you die.  A complete estate plan also names a Power of Attorney, Healthcare Power of Attorney, and includes other legal documents specific to your situation. To find out what should all be included in your estate plan, ask your attorney.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

10 Tips for Writing a Will

Estate planning worksheet for writing a willEveryone has a story about a family they know divided because a parent or family member did not have an estate plan in place.  If you want to prevent that story from being about your family, it’s imperative to initiate your estate planning, including a will.  Getting the process of preparing and drafting a legal document accomplished is not a difficult process, but it’s helpful to understand the basics of preparing a will that prevents that story of family drama from happening to your family.

Don’t procrastinate.

There are a lot of emotions that accompany the process of drafting a will.  Don’t let your feelings get in the way of writing your will.  Start inventorying assets, collecting documents, creating lists, and having important discussions about beneficiaries, executors, and what assets you want passed on.

Know the terms used in drafting your will.

Because a will is a legal document, there are a lot of terms to understand when preparing your will.  Here are a few basic terms used in almost every will:

Beneficiary-heir(s) (family members, friends, associates, organizations) that receive assets specified in your will

Executor-party that ensures that all the terms of your will are carried out

Guardian-person(s) that is going to care for your kids

Make sure it’s legal.

A worthless will can cause more problems for your heirs, including financial costs.  For that reason, choose the author of your will carefully. Selecting an experienced lawyer not only ensures that your assets are distributed in the manner you want, but also has the expertise to recommend any other legal documents that need to be in place for estate planning and any related situations that could arise.

Don’t make any assumptions.

Leave nothing to chance when drafting your will.  Be specific as possible; carefully detail every wish, every item that you want passed on, every beneficiary (and a back-up if your beneficiary is unable to receive the item), and any other preferences about your estate.  For example, if you want your nephew to have your prized model trains, carefully list every item from your collection in your will.

Keep it updated.

A will is not a static document to be tucked away and collect dust.  Update your will when you add more members to your family, marriage circumstances change, death of a beneficiary, significant changes in assets, etc.

Keep it safe.

If you put your will in a safe deposit box, no matter how legally sound, you can make the process more costly and complicated for your family.  Your family may have to get a court order to gain access to the safe deposit box.  Instead, choose a fireproof, protected container for your document.   You’ve gone through all the work to draft a sound will to make it easier for your family; finding a safe location ensures that your will is accessible when the time comes—and can do everything you specified.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.