Category Archives: Estate Planning

Where Your Property Goes Without a Will

“Who gets my stuff if I die without a will?” After some recent discussions, I realized the answer to that question is not commonly known, which does not surprise me. Death always seems to be in the distant future, and doing the research takes time and effort, both of which are scarce resources for many of us. Hopefully you find this post helpful as I try to shed some light on who receives your property if you die without a will. The following is a simplistic and generalized explanation of select definitions and rules on the distribution of property in Wisconsin when a person dies without executing a will. There are exceptions and qualifications.

To get started, a will only governs the distribution of property that is subject to probate, a court-supervised procedure relating to a person’s estate after he or she dies. There are many assets that pass to recipients identified in other documents that are not subject to probate (called nonprobate assets). The documents governing nonprobate assets trump the provisions of any will. Some examples of nonprobate assets include:

  • Retirement plans, insurance policies, and other assets subject to a transfer on death or a payable on death provision (the beneficiary designation controls the distribution)
  • Property held as joint tenants with right of survivorship (the title specifies who the other joint tenants are)
  • Trust assets (distributed according to the trust document)
  • Assets subject to a marital property agreement (the agreement dictates transfers)

Absent a will, the remaining assets are then distributed according to Wisconsin’s intestacy statute (Wis. Stat. § 852).

Select Definitions:

  • Decedent: the deceased person whose estate is subject to administration (“you”).
  • Issue: lineal descendants (children, grandchildren, great-grandchildren, etc.); this generally includes adopted and nonmarital children, as well as their lineal descendants.
  • PerStirpesDiagram_Big2Per Stirpes: a method of distributing property that follows a designated persons lineal descendants. “To my issue, per stirpes”: the assets are divided into as many equal shares as there are then-living children and deceased children who left living descendants. Each living child receives one share and each deceased child’s share is divided among the deceased child’s then-living descendants in the same manner.
  • Surviving Domestic Partner: a person who was in a legal domestic partnership with the decedent, at the time of the decedent’s death. 

Distribution Rules for Property Subject to Probate Administration

Married/Domestic Partnership and No Surviving Issue

  1. All of your property goes to your surviving spouse/domestic partner.

Married/Domestic Partnership and Have Surviving Issue

  1. If all of your surviving issue are also the issue of your surviving spouse/domestic partner, then all of your property goes to your surviving spouse/domestic partner. Basically, if you only had children with your surviving spouse/domestic partner, your spouse/domestic partner receives everything.
  2. If you have any surviving issue that is not the issue of your surviving spouse/domestic partner (for example, you have a child from another relationship):
    1. Your surviving spouse/domestic partner receives one-half of your property that is not the following:
      1. Your one-half interest in marital property (marital property laws do not apply to domestic partnerships; most property of married couples in Wisconsin is likely to be marital property – a discussion for another time); and
      2. Your interest in property that is held equally and exclusively with your surviving spouse/domestic partner as tenants in common.
    2. Your surviving issue share, per stirpes, your remaining property that does not pass to your surviving spouse/domestic partner. That includes:
      1. Your one-half interest in marital property.
      2. Your interest in property that is held equally and exclusively with your surviving spouse/domestic partner as tenants in common.
      3. one-half of the rest of your remaining property.

No Surviving Spouse/Domestic Partner but Have Surviving Issue

  1. Your surviving issue share, per stirpes, your entire estate.

No Surviving Spouse/Domestic Partner and No Surviving Issue

  1. Your entire estate goes to your parents.
  2. If neither of your parents survive you, to your siblings and the issue of any deceased sibling, per stirpes.
  3. If neither of your parents survive you, and neither has any surviving issue, your entire estate goes to your grandparents and their issue (your aunts/uncles and their descendants) as follows:
    1. One-half to your maternal grandparents (your mother’s grandparents); if both maternal grandparents are deceased, to the issue of both or either of them, per stirpes.
    2. One-half to your paternal grandparents (your father’s grandparents); if both paternal grandparents are deceased, to the issue of both or either of them, per stirpes.
    3. If either your maternal or paternal side has no surviving grandparent or issue of a grandparent, your entire estate goes to your relatives on the other side.

None of the Above – All to the State

If you have no surviving spouse/domestic partner, issue, parent, issue of a parent, grandparent, or issue of a grandparent, your estate goes to the state to be added to the capital of the school fund.

Disclaimer: All content provided on this website is for informational purposes only, it may not reflect the most current legal developments, and it should not be construed as legal advice on any subject matter. You should contact an attorney for advice on any specific legal matter.