More Information on Wills
A couple weeks ago, we posted a blog about how to create a valid will in Wisconsin. Since then, we have received several follow-up questions about wills. In this blog post we will cover two of these questions. First, what happens if I die without a will? Second, how can I legally change my will? Keep reading to find out!
What happens if I die without a will?
In general, if a person dies without a will, that person gives up all control over what happens to their property and ownership rights after that person dies. It might not seem like a big deal if you don’t think you own much, but there are other decisions expressed in a will that are important. If you don’t make those decisions in your will, the State of Wisconsin, through the court system, will make them for you.
If a person (called the decedent) dies without a will, the legal term for it is “intestate.” The estate of the decedent (all the assets, property, and ownership rights) is subject to laws of intestacy – statutory provisions that govern asset distribution. First, the state will appoint a “personal representative” who will manage and distribute the decedent’s estate. If the decedent has a spouse, then the entirety of the decedent’s estate will be distributed to that spouse. However, if the decedent has a spouse and children from outside the marriage, then the spouse will receive half the marital property and half the decedent’s individual property. Whatever is left of the estate will be divided equally among all the decedent’s children, which includes those children from the decedent’s current marriage and those children from previous marriages.
If the decedent does not have a living spouse, living children, or living descendants of children, then the estate is divided among other living relatives. The State of Wisconsin has an order to which they will distribute an estate to living relatives. The order is (in relation to the decedent): spouse, children, parents, siblings, nephews and nieces, grandparents, and descendants of grandparents. If the decedent has no living relatives in this order, the decedent’s estate is donated to the state school fund.
Lastly, if children under the age of 18 remain after the decedent’s death, the court must appoint a guardian for the children. However, if a person makes a will, then that person can name a guardian of their choice for any minor children.
How can I legally change my will?
There are two ways to change what is in your will; however, either way you choose you must follow the same rules. First, you can create an entirely new will. A new will automatically supersedes an older will. The other way to change what’s in your will is to make an amendment to it. This method is formally called a “codicil.” Either method you choose means that you must follow the same finalization and witnessing and steps that we covered in our “What Makes a Valid Will?” post.
We hope you have learned a little more about how a will works and why it’s important to have one. Of course, a blog post cannot be a replacement for personalized legal advice. The attorneys at Kelly & Brand, Attorneys at Law, LLC would be happy to help you create or amend your will or help with any legal needs you might have.