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.

8 Questions to Ask Before Drafting a Will

will document that brings up estate planning questions wiDrafting a will is an important estate planning step, and one that does require some preparation. We’ve assisted many Wisconsin clients drafting a will; while hiring an experienced estate planning lawyer ensures that the document is legally sound, asking a few of the right questions at home can assure that the will is accurate and complete.

Who do I want to appoint as guardian of my children? What is that person’s personal information?

Selecting a guardian for your children and other minors when you pass away is not a decision to be made lightly. The right guardian should be an adult, incredibly trustworthy, and should fit all the criteria of a capable guardian. Once you have chosen the right party to be guardian, have their full name and personal information with you when you visit your attorney.

Who are the beneficiaries that I want to receive my assets? What is their personal information (i.e. social security numbers, address, etc.)?

A beneficiary is a party (i.e. individual, charity, etc.) that should receive the assets listed in a will. A will can include instructions to divide the assets equally between beneficiaries or provide specific instructions on individual assets. When scheduling an appointment for drafting a will, have an idea of any specific instructions before visiting an attorney.

Are there any assets that I want to pass on to a certain individual, such as an heirloom piece of jewelry?

One of the most common estate planning mistakes we see is people who give verbal instructions to a beneficiary without including any written instructions in a will. Depending on the situation, this can lead to hard feelings and improper execution of verbal instructions. Unfortunately, verbal instructions are not legally binding, meaning that there is no legal way to ensure that they are followed. Instead of simply telling a beneficiary they can have a prized item, include a written instruction in a will; it’s the best way to ensure that all wishes are followed.

What assets should be listed in the will? Do I have information about those assets (i.e. bank account numbers, lock box information, etc.)?

Not all assets need to be listed in a will. For those assets that should be included in the will, compile pertinent information about the asset, such as the holder and number of a life insurance policy. All information needs to be given to a lawyer during the will drafting process.

Who do I trust to carry out the instructions in my will?

One of the key parties listed in a will is an executor. The executor is charged with the task of distributing assets and carrying out wishes listed in the will. An executor should be extremely honest and organized. The executor does not need to be a family member; it can be anyone you trust with the responsibility. Choose the executor carefully and discuss the decision with all relevant parties to make the process easier when the will goes into effect.