Probate Vs. Non-Probate Assets
Wisconsin’s inheritance laws only apply to probate assets, but not all assets are considered to be probate assets. Non-probate assets pass to beneficiaries directly. The following categories of property are considered non-probate assets in Wisconsin: property owned jointly with survivorship rights, a surviving spouse’s half interest in marital property, life insurance proceeds, assets held by a trust rather than an individual, and bank accounts with survivorship rights or pay-on-death designations. For example, your will cannot distribute life insurance proceeds, because the life insurance will be distributed only to the beneficiaries named in your policy.
Marital Vs. Non-Marital Property
Wisconsin’s inheritance laws treat marital and non-marital property differently. Marital property includes assets a married couple acquires after their “determination date,” which is the couple’s marriage date, the date they began residing in Wisconsin, or January 1, 1986, whichever is later. Since this law could have strange results in some cases, Wisconsin also allows a surviving spouse to make a claim for deferred marital property when his spouse dies. For example, if a couple began living in Wisconsin only a month before the wife died, their only marital property is what they acquired last month; however, the husband can make a claim against his wife’s estate for the monetary value of what would have been considered marital property if they had been living in Wisconsin since they married. This type of claim doesn’t give the husband any rights to items or real property, but it does help him by giving him monetary compensation for the value of that property. Non-marital property is property the couple acquired before their determination date, including property they each owned before marriage. It also includes property either spouse received by gift or inheritance, even if that gift or inheritance happened during the marriage. For example, money a spouse earned by working before the marriage is non-marital property, as is money a spouse inherited from his father during the marriage.
If you die without a will, Wisconsin’s intestacy laws – located in Chapter 852 of Wisconsin’s statutes – will determine what happens to your probate assets. Under these laws, your property will all pass to your surviving spouse unless you have children from another relationship. If you have children from another relationship, half of your non-marital property and your half of your combined marital property will pass to your children; your surviving spouse will inherit half of your non-marital property and his or her half of your combined marital property. If you have no surviving spouse, your property will all pass to your children, or to your parents if you have no descendants.
Wisconsin law allows any mentally competent person at least 18 years of age to make a will. Wisconsin requires your will to be in writing and signed by you. If you are physically unable to sign your will, Wisconsin law also allows you to receive help signing it or to direct someone else to sign it for you in your presence. Your will also must be signed by at least two witnesses who are not beneficiaries in the will. If a witness is also a beneficiary, the will itself may still be valid but any part of the will that gives benefits to that beneficiary will be voided if they exceed what the beneficiary would have received if there had been no will at all.