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When a person dies without a valid will in Wisconsin, the state’s intestate laws come into play. These laws outline a hierarchy of who the court looks to as the beneficiary of your estate. When a person dies without an estate plan, the intestate laws are followed, even when those laws do not agree with what the person would have wanted.
Passing away without an estate plan automatically puts your estate and property under the default inheritance and elder laws of the state of Wisconsin. These default procedures and rules are unlikely to match exactly how you would arrange things, but an estate plan will ensure your estate and end-of-life decisions match what you actually want to happen.
If you die without a will in Wisconsin, all of your property will be controlled by the Wisconsin “intestate” statute under Chapter 852. Dying “intestate” means to die without a will. The intestate statute determines your heirs for you.
Under intestate law, your heir or heirs are determined in the following order. If one is not applicable, it goes to the next:
Probate is more expensive than estate planning in advance because paying court fees and paying for a probate attorney to assist you can get expensive. For example, most Wisconsin attorneys would charge between $5,000.00 and $10,000.00 to handle a smooth, easy probate with no significant disputes between heirs or creditors.
If a probate becomes contested, where multiple parties have lawyers and are litigating aspects of the probate, the costs soar much higher. Realistically, a probate litigation attorney can charge between $20,000.00 to 40,000.00 to handle a probate suit over the course of a couple years. If the case goes on longer than the expected 1.5 to 2 years or so, costs rise even higher, especially if the probate goes through a trial, which is the most expensive, time-consuming part of any lawsuit.
There are nightmare stories of attorneys charging over $100,000.00 for a complicated challenge to a trust or will or other related disputes such as challenging the bad actions and poor decisions of previous executors, trustees, or power of attorney agents.
These legal costs, especially if each party has their own lawyer, could eat up a big chunk of the inherited estate. Even if someone attempted to handle a peaceful probate by themself without a lawyer, there are normal costs of the estate that must be paid such as filing fees, newspaper publication of the notice to creditors, tax preparation costs, and the inventory fee to the courts. Avoiding probate eliminates significant legal costs, in comparison to spending between $2,000 to $7,000 on a good, mid-level estate plan.
The costs of not making an estate plan go beyond just the financial costs as well:
It is most important to have an estate plan when your personal wishes do not match the default state rules in regards to both your care during life and the administration of your estate after your passing. Below are some examples of those scenarios:
Families face a variety of emotional, practical, and legal challenges when a deceased person does not leave a will. At the core, these challenges derive from an inability to legally prove what that person wanted to happen.
Failing to leave a will can cause families to argue over whether the default inheritance rules are “fair.” For example, one child may feel it is unfair that he or she has to share 50% of the inheritance with an estranged, irresponsible sibling who didn’t pay much attention to mom and dad during their lives.
Heirs may argue and disagree over what to do with different pieces of property, such as selling the farm land or cabin up north vs keeping it in the family. Some heirs may think their inheritance should be larger than others, or some may have conflicting views on what to do with the family business or real estate. Two very strong-willed family members may fight for control over who is appointed as executor by the court.
Beyond property disagreements, not leaving a will can cause emotional family conflicts, such as failing to include a particular loved one who would not inherit under the default rules or not appointing a guardian for your minor children.
It is paramount to have a will if you have minor children, primarily so that you can designate a guardian and/or trustee to watch over their money and make day to day decisions over their transportation and housing.
If you do not designate a guardian in your will, there is a risk that other undesirable family members could petition to be the guardian in place of more appropriate candidates. Without a will stating your wishes, it is hard to guarantee that the right person will be chosen by the court to serve.
While wills do not avoid probate, they can make the probate process easier and at least match your property distribution wishes. A will allows you to deviate from the default inheritance rules. Wills also let you control how your property is transferred. This could be forcing it to be sold on a particular timeline/manner, requiring it to be kept in the family for a period of time, or requiring your beneficiaries to draw straws when dividing your personal property. The possibilities, within reason, are endless, and probate courts will generally honor legally valid wills.
Leaving the property in your will to a trust, using a document called a pour-over will, can reduce the number of human signatures required to open and/or close a probate. This significantly cuts down on the time and complexity of the whole process. Using a trust for your estate plan can completely remove the probate process for your beneficiaries.
Wills can also request the probate court to waive the requirement of the executor securing a probate bond. In a joint death situation, spouses can stipulate in their wills that one survived the other, which prevents a “double probate” requirement for both deaths. Instead, the spouses can stipulate that one of them was the survivor in the split-second of death, despite the fact that they died at the same time, allowing the law to treat the 2 deaths as just 1 single estate (this cuts the paperwork in half).
Wills are absolutely required for unmarried partners, as Wisconsin law unfortunately does not recognize these unions as having inheritance rights. There have been many sad situations where two people who loved each other and perhaps lived their whole lives together, but were not married, were unable to pass on their property to each other. This can be devastating for anyone, but especially elderly people.
The harshest examples involve the survivor being kicked out of the residential home by their deceased loved one’s greedy, indifferent family members, due to the fact that the survivor’s name is not on the deed, nor in a will to receive it. Other examples can see entire retirement portfolios, bank accounts, and vehicles stripped from the survivor’s control, leaving them in dire financial straits right after the emotional pain of losing their loved one. Simply creating a will could have solved all of these issues.
Wills are important to prevent complications with blended families. On the one hand, wills can help protect the survivor in retaining the marital property, by stating that children and step-children don’t receive their inheritances until both spouses have died.
Many blended families want to leave all marital property to the surviving spouse to continue using for their sustenance, like a traditional family. On the other hand, wills can also ensure that step-children receive an inheritance, as they are not direct heirs to their step-parent. If you want to leave property to your step-child, you absolutely must have a will.
Friends, caregivers, and charitable organizations are not included in the list of default, intestate heirs when a person dies without a will. Therefore, the only way to leave property and assets to these persons and entities is by creating a will.
Not having a will does not always mean the process is longer and more expensive. The process is delayed and becomes expensive when there are disagreements or misunderstandings of your wishes, and those can easily occur when there is no will or estate plan in place. If your family is able tor ead your wishes in the will you left behind, there is less motivation to argue and fight for control.
A will, as the term suggests, is your post-death instruction document on what you want to happen to your property and who should be in control of that process. Without a will, your estate will be governed by generic, default state inheritance rules, rather than your custom, personal wishes. Failing to leave a will results in an impersonal estate administration, and ultimately is a disservice to the unique legacy you built during life.
Intestate laws are the laws that control how a person’s estate is administered when they die without a valid will. They primarily focus on classes of people who receive the deceased person’s property in a descending hierarchy, such as spouses, children, parents, siblings, aunts/uncles/cousins, and eventually more distant relatives until an heir is found.
Children cannot receive inheritances or own conventional property while they are under 18 years old. If you do not leave a will, there is no control and direction over who will control your children’s property and funds. Leaving a will allows you to stipulate who will take charge to protect the children’s inheritances until they are old enough to receive their money personally. A will can also stipulate that your children should receive their inheritance at an older age, such as 25 years when they are more mature, rather than the default age of 18.
If you are not married, the intestate laws do not treat your partner as your heir. Instead, the law harshly treats them as a mere friend with no inheritance rights, regardless of the strength or length of your love and bond. Having a will can easily fix this problem.
The probate process without a will goes through the same steps as the probate process if you do have a will. The same probate forms from the State of Wisconsin need to be filed, with or without a will, and the debt settlement/creditors and asset collection phases are identical.
The difference in having a will in probate lies in controlling who is appointed as executor, and dictating how and whom receives your property. These are powerful decisions that cut to the core purposes and outcomes of a probate estate, causing the gain or loss of large sums of money and other property for beneficiaries and heirs, depending on how well the executor manages the estate.
Without a will, the executor appointment is a wild card, and open to whichever family member convinces the court that they would make the most appropriate executor. If the court is still unconvinced, it may ask a local attorney to serve as a neutral executor, raising the costs on the estate. Failing to have a will also leaves your property in equal shares to whichever class of people in your family is alive according to the intestate statute’s inheritance hierarchy (unless of course your spouse is alive, or you have one child and no surviving spouse, in which case it is just a single share to that person).
