Creating a last will and testament is an important step for every adult. Your will is a crucial part of your estate planning and allows you to make your wishes known. Our FAQs give you all the information you need to create your Wisconsin will.
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What If I Die Without a Will in Wisconsin?
When a person dies and has a will, the will instructs the probate court on the distribution of their real estate and personal property among their loved ones. When a decedent does not have a will, they are “intestate,” and Wisconsin intestacy laws control who gets your assets when you die.
When there is no will, the surviving spouse and children inherit the estate. If there is no spouse or child, inheritance passes to the next of kin, such as parents, siblings, or grandparents. If no next of kin is found, the state receives the assets.
What Does a Will Do?
A will allows you to specify your wishes and leave instructions on how to handle your estate. In your choice, you can do the following:
- Names a personal representative or executor who is responsible for locating your will, submitting it to the probate court, and carrying out your wishes as your will moves through the probate process
- Identifies and gives away specific personal property and real estate to the people you identify
- Names beneficiaries who are usually your loved ones, family members, or close friends whom you have selected to receive the rest of your assets and belongings.
- Makes charitable bequests to the charities of your choice
- Names guardians for your minor children so that the court knows your wishes about who you want to care for them
- Names caregivers for pets and sets aside funds for their care
Having a will speeds up the probate process. Because you specify your wishes, a probate court won’t have to sort it out, saving your loved ones time and money.
What Doesn’t a Will Do?
Your Wisconsinlast will and testament allows you to distribute money, personal property, and real estate. However, some assets do not transfer through a will. These are called non-probate assets, and they pass according to the terms of their own documents. These include:
- Funds in payable-on-death or transfer-on-death bank accounts
- Proceeds from life insurance policies or annuities (to beneficiaries other than to the estate itself)
- Retirement Benefits, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including revocable living trusts and assets owned by trusts
Check your accounts and policies to make sure you include named beneficiaries and back up beneficiaries in case your primary beneficiary dies before you. Any account or policy without a named beneficiary goes back into your probate estate.
Additionally, wills do not control your assets or medical decisions during your life. You can handle those matters with separate documents, such as a power of attorney and living will.
Who Can Make a Will in Wisconsin?
According to Wisconsin law, the testator, the person making the will, must meet specific requirements to make a valid will.
- Age: The testator must be 18 years of age or older
- Sound Mind: The testator must be of sound mind. Being of sound mind means the person making the will understands what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.
A testator must also have a sound mind, called testamentary capacity, at the time they make and sign the will. Wisconsin residents with concerns about their testamentary capacity should consult an estate planning attorney for legal advice and assistance.
Does Wisconsin Have a Statutory Will?
Wisconsin has a statutory will, a template the state has created that Wisconsin residents can use to create their own will. You can find it in Wisconsin Statute 853.55.
However, you do not have to use the statutory form. It is quite limited in how you distribute your property and only the testator can sign it for validity. There are better options for a Wisconsin will: either create your own will customized to your needs or hire an estate planning attorney for legal advice. Many people looking for self-help solutions choose FindLaw Legal Forms and Services to make a will conforming to Wisconsin law.
What Types of Wills Does Wisconsin Accept?
The most common type of will is typewritten or printed and signed by the testator. There are other types of will to be aware of and if Wisconsin allows them,
- Handwritten Will: Also called a holographic will, this is a will completely written in the testator’s handwriting and signed by them without a witness present. It is only a valid will in Wisconsin if it was executed in another jurisdiction (state) and met the requirements in that state to be valid. A holographic will created within Wisconsin is not valid.
- Oral Will: An oral or spoken will is not valid in Wisconsin.
- Electronic Will: An electronic will is digital only and signed, witnessed, or notarized through electronic means. At this time, electronic wills are not valid in Wisconsin.
These types of wills may be subject to challenges in court for undue influence or fraud, so it is always safest to complete a typed or printed will and sign with witnesses.
Can I Make My Own Will in Wisconsin?
You can make your own will in Wisconsin. The state does not require you to use an attorney to draft a will. If you have a simple estate and know your wishes, you can make their own will. Many people use FindLaw Legal Forms and Services to draft their will. One advantage of making your own will is that it is easy to update when you have a significant life change, such as the birth of a child, the death of a beneficiary, or divorce. Simply revoke your old will and create a new will.
How Do I Make My Will Valid in Wisconsin?
To ensure that your will is valid in Wisconsin, follow Wisconsin’s legal requirements, including the following.
- Signature: The testator must sign the will themselves. However, they can sign with the assistance of someone else if the testator consents or another person can sign it for them at the testator’s direction and in the testator’s conscious presence.
- Witnesses: A competent witness is someone who is able to testify in court. Two competent witnesses must sign the will within a reasonable time after the testator signs it in their conscious presence or when the testator acknowledges to the witnesses that they signed the will or directed another to sign. Avoid using “interested witnesses” when possible, meaning a witness (or the witness’s spouse) who may benefit from your will. The will is still valid, but any bequest to an interested witness or their spouse is allowed only up to the amount they would have received under intestacy laws. If there are two other disinterested witnesses or sufficient evidence that the testator really wanted to make the bequest, then it stands.
- Notary: You are not required to use a notary for your will in Wisconsin.
- Self-Proving Affidavit: A self-proving affidavit is an affidavit attached to the will. The testator and witnesses sign it in front of a notary, swearing that this is the testator’s will and that they all signed it according to state requirements. This affidavit attached to the will, makes it self-proving and then used instead of witness testimony at probate.
Can I Disinherit My Spouse in Wisconsin?
You are not required to leave anything to your spouse in your will in Wisconsin, but if you fail to do so, they are entitled to seek half of the marital property, sometimes called an elective share. An elective share is a statutory amount that a surviving spouse may claim if left out of the will.
Can I Disinherit My Children in Wisconsin?
You can disinherit a child in Wisconsin by leaving them out of the will, but it is generally best to expressly state you are doing so.
If the testator had no children when they signed their will and a child is born or adopted after execution, that omitted child receives the share they would receive under intestacy laws.
If the testator had other living children at the time of execution and included them in the will, any omitted child shares in what is left to the included children unless it is clear the omission was intentional, or the testator provided for the child in another way (such as through non-probate assets).
What Estate Planning Documents Should I Have in Wisconsin?
A will is a key part of estate planning. However, a complete estate plan should also include the following:
- Power of Attorney: You can authorize someone you trust to handle your financial affairs if you are unable. Your agent is a fiduciary who must act in your best interests. You decide what powers to grant your agent and when this authority begins and ends.
- Health Care Directive: In Wisconsin, a Power of Attorney for Health Care names someone who can make health care decisions for you if you cannot make them for yourself. They can also access your medical records. A Declaration to Physicians (Health Care Directive or Living Will) allows you to state your wishes for life-prolonging measures you want or do not want when you have an end-stage illness or terminal condition.
Fortunately, making a valid will and creating other Wisconsin estate planning documents is easy with online estate planning resources and templates.