Wisconsin Last Will and Testament

Wisconsin Last Will and Testament

by Michelle Kaminsky, Esq., January 2015

A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Wisconsin wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.

Not to be confused with a will, a Wisconsin living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.

Do You Need a Last Will and Testament?

Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.

In addition to providing the opportunity to direct asset distribution, a Wisconsin last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.

Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.

Wisconsin offers formal, informal, and “special” probate. Formal probate requires court monitoring while informal may not. Special probate generally involves small estates and includes an affidavit procedure that may be used for estates valued at no more than $50,000.



Intestacy: Dying Without a Will

Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Wisconsin in the absence of a will, a surviving spouse inherits the entire estate even when the surviving spouse and decedent share descendants. If a decedent has at least one child that is not also a descendant of the surviving spouse, the spouse’s share is one-half of the decedent’s separate property; the children inherit the decedent’s community property share as well as the rest of the separate property.

If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.

Exceptions to Ability to Distribute Property?

Not all property can be distributed according to a will. Some exceptions include the following:

  • Property owned in joint tenancy with right of survivorship
  • Survivorship marital property
  • Life insurance policy and retirement account proceeds
  • Assets held in a revocable living trust

Form a Last Will in Wisconsin

The basic requirements for a Wisconsin last will and testament include the following:

  • Age: The testator must be at least 18 years old.
  • Capacity: The testator must be of sound mind.
  • Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
  • Witnesses: A Wisconsin will must be signed by at least two witnesses who signed within a reasonable time after the will’s signing or the testator’s acknowledgement of the signature, within the conscious presence of the witness.
  • Writing: A Wisconsin will must be in writing.
  • Beneficiaries: A testator can leave property to anyone.

Changing a Wisconsin Last Will and Testament

A Wisconsin will may be changed at any time by codicil, an amendment, which must be executed in the same way as a will.

Revoking a Wisconsin Last Will and Testament

The revocation of a Wisconsin will can be accomplished by executing a subsequent will or by “burning, tearing, canceling, obliterating or destroying” the document or any part of it, done by either the testator or by someone else at his direction in his conscious presence with the intent to revoke.

If you are ready to create a last will of your own, LegalZoom can help you get started in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and power of attorney.