Yes. In Wisconsin, anyone who has possession of a decedent’s original will is required to deliver it to the probate court in the county where the decedent resided, or to a person who can properly submit it for probate (such as the nominated personal representative). This duty applies whether or not the person believes the will is valid or will ultimately be admitted to probate, and it is governed by Wisconsin Statutes § 856.05.
The obligation applies broadly to family members, friends, attorneys, financial institutions or safe deposit box custodians, and anyone else who has possession or control of the original will. “Possession” includes physical custody of the original document, control over access (such as holding a safe deposit box key), or any situation in which the person can produce the will. The will must be delivered promptly after learning of the testator’s death. There is no authority to delay indefinitely or to wait for a decision about whether probate will occur.
Failure to deliver a will can result in court orders compelling production, personal liability for damages caused by the failure, and, in some cases, contempt of court. The person may also face civil liability if their conduct harms beneficiaries or the estate. The rule exists to ensure the decedent’s true testamentary intent is discovered, to prevent delay or obstruction of the probate process, and to deter fraud or concealment of wills. Wisconsin Statutes § 856.05 sets out the duty to file or deliver a will, and other probate procedure rules in Chapters 851–879 govern admission of wills to probate once delivered. In summary: anyone in possession of an original will must promptly deliver it to the probate court or an appropriate representative after the testator’s death, and failure to do so can result in court enforcement and potential liability.
If you would like to discuss this matter more thoroughly, please reach out to our Madison Wisconsin Estate Planning attorneys. We are here to help!