When a parent passes away without a will, also known as dying "intestate," Wisconsin's intestacy laws govern how the deceased person's estate is distributed. These laws are outlined in Chapter 852 of the Wisconsin Statutes and are designed to provide a clear framework for allocating assets among surviving family members, including children. Parents should seek top professional estate planning services in Wisconsin to create a will in order to secure their children’s financial future.
Wisconsin’s Intestate Succession Laws
In Wisconsin, the rules of intestate succession prioritize the closest relatives of the deceased. If a parent dies without a will, the estate is distributed according to the following general guidelines:
- Surviving Spouse and Children:
- If a spouse and children survive the deceased parent, the estate is typically divided between the spouse and the children.
- If all children are also the children of the surviving spouse, the surviving spouse is entitled to the entire estate.
- If there are children from another relationship, the surviving spouse inherits half of the estate, and the other half is divided equally among the children.
- No Surviving Spouse:
- If there is no surviving spouse, the entire estate is distributed equally among the children of the deceased.
- Children of Deceased Children:
- If a child of the deceased has also passed away, that child’s share will be distributed to their descendants (the deceased parent’s grandchildren). This is known as "per stirpes" distribution.
Notably, marital property acquired during the marriage typically goes to the surviving spouse, but for community property and separate property, parents may be subject to different distribution rules. If the parent has no spouse or children, their parents' siblings inherit any remaining property.
What Are Children Entitled To?
Equal Shares of the Estate
Under intestate succession in Wisconsin (when a parent dies without a will), the estate is divided among the biological children. In contrast, children born outside of marriage may inherit if paternity is established. The law is clear: all children are entitled to an equal share of the estate. This division is not affected by the child’s age, financial status, or the child's relationship with the deceased.
- Biological Children: These children are automatically considered heirs and are entitled to their equal share.
- Adopted Children: Legally adopted children have the same rights to inheritance as biological children. Once adopted, the legal relationship with the adoptive parents is identical to that of biological children.
- Children Born Out of Wedlock: If a child was born out of wedlock, they are still entitled to a share of their deceased parent’s estate. However, paternity must be legally established.
Notably, foster children in Wisconsin do not inherit from their foster parents unless they are formally adopted or specified in a will.
Non-Probate Assets
In addition to probate assets (assets that go through the formal court process), certain types of property pass directly to designated beneficiaries without the need for probate. Children can, therefore, inherit these assets directly, even if their parents died without a will.
- Life Insurance Proceeds: If a life insurance policy names a child as the beneficiary, the proceeds will go directly to that child without being part of the probate estate.
- Retirement Accounts: Accounts such as IRAs, 401(k)s, and pension plans that have named beneficiaries will pass directly to those individuals, including children, if they are listed as beneficiaries.
- Jointly Owned Property: If the deceased owned property or financial accounts with someone else (such as a spouse) under a right of survivorship, those assets will pass directly to the surviving owner, typically without needing to go through probate. This can also apply to jointly owned accounts where the child is the surviving co-owner.
Rights of Minor Children
When a minor child inherits a portion of an estate, special considerations come into play. Wisconsin law protects the inheritance of minor children to ensure their financial security. The law requires the establishment of a guardian or conservator to manage the minor child’s inheritance until they reach the legal age of majority, which is 18 years old.
- Guardian or Conservator Appointment: If a minor child inherits, the court typically appoints a guardian or conservator to oversee the management of the child's share of the estate. This is to ensure the funds are used appropriately for the child's benefit, such as for education, healthcare, and basic needs, rather than being mismanaged.
- Use of Trusts for Minor Children: In some cases, especially when substantial assets are involved, a court may recommend or require that the minor child’s inheritance be placed in a trust until the child turns 18 (or sometimes a later age if specified).
How Our Wisconsin Estate Planning Attorney Can Help You
When a loved one dies without a will, the legal and emotional challenges can be overwhelming. At Krause Estate Planning & Elder Law Center, we have over 25 years of experience providing families with compassionate guidance and practical solutions during these difficult times.
As one of only seven board-certified Estate Planning Law Specialists in Wisconsin, our firm is uniquely equipped to handle even the most complex cases, ensuring the rights of children are protected, and the deceased’s estate is managed in compliance with Wisconsin law.
Guiding Families Through the Probate Process
The probate process can be daunting, mainly when there is no will to guide the distribution of assets. Our attorneys have a deep understanding of Wisconsin probate laws and will work diligently to:
- Ensure the estate is distributed according to Wisconsin’s intestacy laws.
- Resolve disputes that may arise among heirs or family members.
- Minimize delays and reduce the financial and emotional burdens of probate.
Resolving Legal Disputes Over Inheritance
Inheritance disputes can strain family relationships and prolong the legal process. Our attorneys provide strong representation in legal proceedings to:
- Advocate for children’s inheritance rights under Wisconsin inheritance laws.
- Resolve conflicts between children from different relationships or with step-parents.
- Navigate disputes involving unclear paternity or contested claims.
Helping Establish Paternity for Children Born Out of Wedlock
Children born out of wedlock may face unique challenges in claiming their rightful inheritance. Our team helps ensure these children are recognized under Wisconsin intestacy laws and receive their fair share of the estate.
Protecting Minor Children’s Inheritance
When minor children inherit assets, Wisconsin law requires safeguards to ensure their financial future is protected. We provide comprehensive solutions such as:
- Setting up trusts to manage and preserve a minor’s inheritance until they reach adulthood.
- Structuring the inheritance to minimize tax implications and maximize long-term benefits.
Reach out to Krause Estate Planning & Elder Law Center today to learn how we can help your family overcome the challenges of intestacy and safeguard your children’s inheritance. To schedule a consultation with our dedicated staff, call us at 608-268-5751 / 414-285-1082 / 877-718-0846 or contact us online.