Wisconsin State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

  • Wisconsin Statutes Annotated
  • Probate jurisdiction rests with the Circuit Court
  • Probate laws are primarily under Probate (Chapters 851 to 882)

Minimum age requirement to:

  • Distribute property by will: 18 (Section 853.01)
  • Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes:

  • Estate tax: Equal to federal credit for state death taxes, but the maximum total state estate tax cannot exceed this federal credit (Section 72.02)
  • State gift tax:Inheritance tax: No inheritance tax (Section 72.02)
    • Imposes a state gift tax (Section 72.02)
    • Anatomical Gift Act (Section 157.06)
  • Inheritance tax: No inheritance tax (Section 72.02)

Default rules: How property is distributed if there is no will, i.e. (laws of intestate succession): (Section 852.01)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • All of your estate will pass to your spouse
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • one-half (1/2) to surviving spouse, and
        • the other one-half (1/2), split equally among the surviving children or grandchildren according to their per stirpes share
        • No children and both of your parents of deceased:
          • All of your estate will pass to your spouse
        • No children, but at least one of your parents survives you:
          • All of your estate will pass to your spouse
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) equally or their children according to their per stirpes share. If none, then to grandparents then to your spouse’s next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 861.02), andChildren, born or adopted, and grandchildren of your deceased children (Section 861.02)
    • Surviving spouse must be given one-half (1/2) of your modified community property (Section 861.02)
  • Children, born or adopted, and grandchildren of your deceased children (Section 861.02)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced spouse (Section 853.11)
  • You get married without changing your will that does not provide for your new spouse:
    • Revokes will as to spouse, unless will expressly provides for spouse, but spouse may still be entitled to shares under state intestate law (Section 853.11 and 853.25)

Out of state executors: Must appoint in-state agent to accept legal papers, but at the court’s discretion based only on residency, court can be removed or refused appointment (Section 856.23)


  • Minimum number of witnesses required: Two (Section 853.03)
  • Are witnesses allowed to be beneficiaries?: Yes; however, amount to witness beneficiary cannot exceed amount entitled to under state intestate law (Section 853.07)
  • Requirements to be a witness, witnesses must:
    • be an adult,
    • not be related to you by blood or marriage,
    • not be entitled to anything in your will,
    • not be finically responsible for your healthcare,
    • not your attending physician, and
    • not any employees of your healthcare provider or an inpatient healthcare facility in which you are a patient, unless they are a chaplain or social worker

Property ownership (Sections 700.17, 700.19, and 700.20):

  • Community property state
  • Ownership by spouses is assumed to be held as joint tenants unless otherwise stated
  • Jointly held real estate is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is not recognized in this state
  • Tenancy in common and joint tenancy are recognized

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 853.04)
  • Living will: Declaration to Physicians (Section 154-03) requires a certification from you attending physicians and at least one other physician that you are in a terminal condition, your death will result without using life-sustaining procedures, and you can no longer make your own medical decisions
  • Power of Attorney for Health Care (Section 155-05)
  • Durable Power of Attorney (Section 243.07-1a)