Why Every Wisconsin Resident Should Have a Will
Creating a last will and testament is one of the most important steps you can take to protect your family and ensure your wishes are honored after you pass. Yet many Wisconsin residents put off this critical task — sometimes indefinitely. Whether you have significant assets or modest ones, a will gives you control over what happens to your estate and your loved ones when you are no longer here to speak for yourself.
This guide covers the key legal requirements for a valid will in Wisconsin, what happens if you die without one, and why taking action now matters. This article is intended for general educational purposes only and does not constitute legal advice. Every situation is unique, and we encourage you to speak with a qualified Wisconsin estate planning attorney.
What Is a Last Will and Testament?
A will — formally called a "last will and testament" — is a written legal document that directs how your property will be distributed at your death. It can also serve several other important functions, including naming the people you trust to carry out your wishes and care for your minor children.
In Wisconsin, wills are governed by Chapter 853 of the Wisconsin Statutes, which sets out all of the requirements a will must meet to be legally valid.
Who Can Make a Will in Wisconsin?
Wisconsin law sets straightforward eligibility requirements. To make a valid will in Wisconsin, you must be:
- At least 18 years of age, and
- Of sound mind at the time the will is executed.
Being of "sound mind" means you understand that you are signing a will, have a general awareness of the extent of your assets, and know who would naturally inherit your property. If someone questions the testator's mental capacity at the time of signing, the will could be challenged during the probate process.
Legal Requirements for a Valid Wisconsin Will
Under Wisconsin law, a will must meet specific formal requirements to be enforceable. A valid Wisconsin will must satisfy all of the following:
- Written form: The will must be in writing on actual paper. It cannot be recorded on audio, video, or a digital file.
- Signed by the testator: The person making the will (the "testator") must sign it, or have another person sign it on their behalf at their direction and in their conscious presence.
- Witnessed by two people: The testator must sign or acknowledge the will in the "conscious presence" of two witnesses, who must then sign the will within a "reasonable time" after the testator's signing.
- Disinterested witnesses recommended: It is strongly advisable to use only "disinterested" witnesses — meaning people who will not inherit anything under your will. Interested witnesses may be prohibited from receiving the gifts left to them in the document.
Does a Wisconsin Will Need to Be Notarized?
Notarization is not required to make a will valid in Wisconsin. However, having your will notarized makes it "self-proving," which can significantly speed up the probate process. To make a will self-proving, you and your witnesses must swear in an affidavit before a notary public to the authenticity of the will. That affidavit should be made part of, or attached to, the will. With a self-proving will, witnesses are not required to testify in court because the court automatically accepts it as authentic.
Are Handwritten (Holographic) Wills Valid in Wisconsin?
Wisconsin does not recognize holographic (entirely handwritten, unwitnessed) wills. Even if your will is handwritten, it must still be signed by two witnesses to be legally valid under Wisconsin law. Handwritten or printed wills are accepted, but oral or spoken wills are not recognized in Wisconsin.
What Can You Include in Your Wisconsin Will?
A will is a powerful and flexible estate planning document. In Wisconsin, your will can address a wide range of matters, including:
- Distributing your assets: Your will can direct the distribution of any property you own at the time you make your will, as well as property you acquire afterward.
- Naming an executor: You can designate a trusted person — called a personal representative or executor — to manage your estate, pay your debts, and carry out the terms of your will.
- Naming a guardian for minor children: One of the most important functions of a will is the ability to nominate a guardian to care for your minor children if you pass away. Without a will, a state judge — not your family — decides who raises your children.
- Creating a testamentary trust: Your will can establish a trust for beneficiaries (such as minor children) to manage and protect assets distributed to them.
- Leaving gifts to charities or friends: Friends, caregivers, and charitable organizations cannot inherit under Wisconsin's intestate (no-will) laws. A will is the only way to ensure these individuals and organizations receive a portion of your estate.
Wisconsin's Marital Property Law and How It Affects Your Will
Wisconsin is one of only a handful of community property states in the U.S. Under the Wisconsin Marital Property Act, which became effective January 1, 1986, property acquired by either spouse during the marriage is generally classified as "marital property," and both spouses have equal ownership interests in it.
This classification has important implications for estate planning. Unlike common-law property states, Wisconsin law automatically assigns ownership interests to marital property acquired during the marriage. As a result, you generally cannot leave your spouse's share of marital property to someone else through your will, even if the asset is titled only in your name. Working with an attorney familiar with Wisconsin's marital property rules is essential to drafting an effective and legally sound will.
What Happens If You Die Without a Will in Wisconsin?
Dying without a valid will is known as dying "intestate." When this happens, Wisconsin's intestate succession laws — found in Chapter 852 of the Wisconsin Statutes — dictate who inherits your estate. Crucially, the state does not consider what you may have verbally told family members or written in informal notes; those wishes have no legal weight.
The Order of Intestate Succession in Wisconsin
Wisconsin's intestate succession laws apply a tiered structure based on your surviving family members. Here is a general overview of how assets are distributed:
- Surviving spouse (all children from current marriage): If you are married and all of your children are from that same marriage, your surviving spouse receives 100% of the estate.
- Surviving spouse (children from a prior relationship): If you have children from a previous relationship, your spouse's share is reduced. Your spouse will not inherit your share of community/marital property, and would instead inherit only half of your separate property.
- Children and descendants: If there is no surviving spouse, the estate passes to your children and their descendants.
- Parents and siblings: If you have no surviving spouse or children, the estate passes to your parents and/or siblings.
- Grandparents and more distant relatives: If none of the above survive you, the court continues up the family tree to grandparents and then more distant relatives.
- The state of Wisconsin: Only if no heirs can be identified does your property "escheat" to the state. This is a last resort and rarely occurs.
The 120-Hour Survivorship Rule
Under Wisconsin law, a person must outlive you by at least 120 hours (five days) to inherit under intestate succession. This rule prevents property from passing to someone who dies shortly after you do, only to be redistributed again through that person's estate.
What Intestate Succession Cannot Do
Dying without a will creates significant gaps in protection for your estate and your loved ones. Under intestate succession, there is no mechanism to:
- Name the person you want to raise your minor children
- Leave assets to friends, caregivers, or charitable causes
- Choose who manages and settles your estate
- Create a trust to protect assets for children under 18
Children cannot own conventional property while under 18, and without a will there is no direction over who controls your children's funds and property until they come of age.
How to Revoke or Update Your Wisconsin Will
Life changes — and so should your will. You should consider reviewing and potentially updating your will after major life events such as marriage, divorce, the birth of a child, the death of a named beneficiary, or a significant change in your assets. If you move to another state, updating your will is also advisable to ensure it aligns with your new state's laws.
In Wisconsin, you can revoke a will by executing a new one or by physically destroying the document with the intent to revoke it. If you have two wills and it is unclear whether you intended to revoke the earlier one, Wisconsin law has rules to determine whether the newer will replaces or simply supplements the older one.
Wisconsin's Statutory Basic Will
For those with straightforward estates and family situations, Wisconsin offers a statutory "basic will" template embedded directly in the statutes. This form is a good starting point for people with simple assets and uncomplicated family dynamics, but it offers limited flexibility compared to a custom-drafted will. Consulting with an estate planning attorney can help you determine whether the basic will is sufficient for your needs or whether a tailored document would better serve your family.
Take Action: Protect Your Family and Your Legacy
A will is one of the most meaningful gifts you can leave your family. It eliminates guesswork, reduces the potential for family disputes, and ensures that the people and causes you care about are provided for on your terms — not the state's. As one estate planning guide puts it, a will can simplify estate settlement, speed up probate, save legal costs and taxes, and help survivors adjust.
At Leeds Law Firm, our experienced estate planning attorneys are here to help Wisconsin residents create clear, legally valid wills that reflect their true wishes. Whether your situation is simple or complex, we can guide you through every step of the process.
This article is for general informational and educational purposes only and does not constitute legal advice. Please consult a qualified Wisconsin estate planning attorney for guidance specific to your situation.
