In Wisconsin, intestate succession is the statutory process for distributing a decedent’s probate estate when there is no valid will, or when a will does not dispose of all probate property. The governing rules appear primarily in Wisconsin Statutes Chapter 852 and provide a default plan for who inherits if testamentary instructions are absent.
Intestate succession applies only to probate property and does not govern nonprobate assets. Property that bypasses intestacy includes joint tenancy property with right of survivorship, marital property with right of survivorship, payable-on-death (POD) or transfer-on-death (TOD) accounts, life insurance payable to a named beneficiary, retirement accounts with designated beneficiaries, and assets held in a revocable living trust. Those assets pass according to their title, beneficiary designation, or contract terms rather than the intestacy statutes.
Wisconsin’s order of intestate succession generally follows this hierarchy. First, the surviving spouse: if the decedent leaves no surviving descendants, the spouse inherits the entire intestate estate; and if all of the decedent’s descendants are also descendants of the surviving spouse, the spouse likewise generally inherits the entire intestate estate. If the decedent has one or more descendants who are not descendants of the surviving spouse, the estate is divided between the surviving spouse and those descendants as the statute prescribes. Next, descendants: if there is no surviving spouse, the estate passes to the decedent’s descendants by representation. If there are no descendants, the estate passes to the decedent’s parent or parents. If there are no surviving parents, the estate passes to the decedent’s brothers and sisters, with descendants of a deceased sibling taking that sibling’s share by representation. If there are no closer heirs, the estate passes to grandparents or the descendants of grandparents (such as aunts, uncles, and cousins) as provided by statute. If the decedent has no heirs entitled to inherit under Chapter 852, the probate estate escheats to the State of Wisconsin.
Wisconsin applies the doctrine of representation (modern per stirpes). If an heir in a particular generation predeceases the decedent, that heir’s descendants generally inherit the share the deceased heir would have received. For example, if a Wisconsin resident dies without a will, leaving a surviving spouse and two children from that marriage and no other descendants, the surviving spouse generally inherits the entire probate estate because all of the decedent’s descendants are also descendants of the spouse. By contrast, if the decedent leaves a surviving spouse and a child from a prior relationship who is not also the spouse’s descendant, the estate is divided between the spouse and that child according to statute. In summary, intestate succession is Wisconsin’s default scheme for distributing a decedent’s probate estate to heirs when there is no valid will or when the will does not dispose of all probate assets.
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!