Legal Consequences of Dying Without a Will

Do you have a Will? Chances are that you don’t, especially if you are not approaching retirement age. A Will is the simplest and easiest way of ensuring that your assets are passed to whom you wish and your children are protected in case of the unexpected. Without a Will, you may see some of the following consequences:

1. Intestate Succession, or Statutory Distribution of Your Estate

If you die without a Will in Wisconsin or any other state, then the state’s “intestate succession” laws apply. This means that your property that is not structured to pass along to others by other means (such as by joint tenancy, retirement account beneficiaries, or life insurance beneficiaries) that is not considered part of your probate estate, will go by default to your relatives in a certain order. Under Wisconsin law, such property passes as follows:

  • If only your spouse survives you, all property goes to the spouse.
  • If your spouse and children survive you, your spouse receives all the marital as well as your separate property.
  • If you have no spouse, then it passes to your surviving children or grandchildren of a deceased child who evenly split that child’s share.
  • If no spouse or children, then it passes to your parents.
  • Should you have no spouse, children, or surviving parents, the property passes to your siblings, or their issue, in equal shares.
  • If none of the above, then your property passes to the grandparents, if living, or their issue with half to the maternal and half to the paternal side
  • Should no one as described survive you, the Wisconsin School Fund is the recipient.

Your spouse is entitled to receive all real property held as husband and wife as joint property. If you had children, not of your current spouse, then your spouse receives one-half of your separate property, and your children receive your share of the marital property and one-half of your separate property.

The main point here is that you have no say in what property goes to whom and in what shares, and figuring out where assets are to go can quickly become a messy process. If you had expressed your intent that certain jewelry goes to a particular child or that funds go to a specific charity, your surviving heirs have no obligation to follow your wishes in the absence of a will.

2. Inefficient Administration of Estate

The court will appoint an executor to administer your estate. With a Will, you can appoint a person, usually a close relative or friend, to see that your debts are paid and assets managed and distributed as you intended. A court-appointed executor may be an estranged spouse or adult child who may not be trustworthy or capable of administering your estate fairly, honestly, or efficiently.

3. No Trusts for Beneficiaries

Funds or real property may go to a child or sibling who may be a gambler or spend it unwisely. In a Will, you can set up a trust that will not allow your heir’s immediate access to all the assets, and you can have a trustee control its distribution.  This can also be done through a Living Trust, which is a Will substitute often used for various reasons.

4. No Guardian Appointed for Minor Children

In a Will, you can appoint a guardian for minor children.  Without a Will, if you have minor children who survive you but no spouse, a court will appoint a guardian who may not be a person or persons suitable for the task. Potential guardians may petition the court, which might entail a battle among siblings or relatives who wish to care for them. Without a Will, you lose control over the process.

Putting in place a simple Will does not need to be costly or complicated. Along with a Will, you will also want to put in place some other basic documents. Talk to your Wisconsin trusts and estates lawyer about a Will and other estate planning tools so that your intentions regarding the distribution of your property are carried out and your family avoids the problems that intestate succession can create.

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