WISCONSIN WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย WI Stat., Ch. 853 (ยงs853.0101, et. seq.).
Trusts:ย WI Stat., Ch. 701 (ยงยง701.01, et. seq.).
Wisconsin Will Requirements.
To have legal authority to create a valid will under Wisconsin law, a testator must be at least 18 years old and have adequate mental capacity.ย Wisconsin wills must be in writing, signed by the testator (or another person in the testatorโs presence and at his or her direction), and witnessed by at least two witnesses.ย ย
The two witnesses to a Wisconsin will must observe the testator signing the will or hear the testatorโs declaration that the testatorโs signature is genuine.ย Witnesses must sign the will in the testatorโs presence and within a reasonable time after the signature or authentication occurs. Anyone competent under Wisconsin law to act as a witness in court can witness a will.ย ย
A Wisconsin will witnessed by an interested party (i.e., someone who receives a personal and beneficial interest under the will) is not invalid as a whole.ย Provisions in favor of an interested witness (or an interested witnessโs spouse) are void to the extent the value exceeds what the witness would have received had the testator died intestate.
Although notarization is not required to create a valid will in Wisconsin, state law allows a will to be โself-provedโ if it includes a notarized affidavit with a self-proving clause attached to the will.ย The affidavit is executed by both witnesses and the testator and states that the testator willingly signed the will with the intent to create a will and with the required legal capacity.ย When present, the affidavit serves as evidence of the willโs authenticity and allows for admission in probate without further witness testimony.ย ย
Wisconsin law authorizes testators to incorporate other documents within a will by reference. ย Documents which can be incorporated by reference include written lists setting forth dispositions of tangible personal property not otherwise addressed in a will.ย Often called a โmemorandum of personal property,โ the list must be signed and dated by the testator and must identify with reasonable certainty the devised items and intended recipients.ย A list of personal property can be created before or after a will is executed and can be altered by the testator.ย Wisconsin law also authorizes a similar list disposing of โdigital property.โ
When a Wisconsin decedent leaves a will, it is presumed to pass his or her entire estate, and distributions are presumed to transfer the entire interest in transferred property.
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Amendment, Revision, and Revocation of Wisconsin Wills.
A Wisconsin will can be revoked if, with the intent to revoke the will, the testator physically destroys the will (e.g., by burning or tearing).ย Or, a will be can be expressly revoked through execution of a later will or codicil that explicitly declares an intent to revoke the prior will.ย ย ย
Amendment of a Wisconsin will can be accomplished through a codicil (a later-executed addendum to an existing will); provided, however, the codicil must satisfy all formalities required for Wisconsin wills.ย ย
A new will that does not expressly revoke a prior will is presumed to revoke the prior will by inconsistency if the later will completely disposes of the testatorโs estate.ย If a later will does not completely dispose of the testatorโs estate, it is presumed to have been intended as a supplement to the earlier will, with the later-executed will controlling in the event of any conflicting provisions.ย
If, after executing a Wisconsin will, a testator is divorced, any provisions in the will in favor of the former spouse (or the former spouseโs relatives) are deemed to have been revoked unless the will or a property settlement agreement or other contract between the former spouses expressly states otherwise.ย ย
If a testator marries after execution of a will, the surviving spouse inherits the same share of the estate he or she would have inherited had the testator died intestate, adjusted for any distributions to children of the testator who are not children of the surviving spouse.ย A later-wed spouseโs share is inapplicable if the will contemplates the marriage, sufficient evidence shows that the testator intended the will to apply notwithstanding the marriage, or a valid prenuptial agreement is present.
If a child is born to or adopted by a testator after execution of a Wisconsin willโand if the testatorโs will does not provide for or appear to intentionally omit the childโthe child inherits a share of the estate.ย If the testator has no other children, the share is equal to what the child would have inherited had the testator died intestate.ย If the testator has other children provided for under the will, the share is equal to devises to other children.
Holographic and Oral Wills.
Wisconsin law does not recognize holographic (or handwritten) wills.ย A will written in the testatorโs handwriting must satisfy all other requirements for creation of a valid will to be admissible in probate.
Oral (or โnuncupativeโ) wills are not recognized under Wisconsin law.
Wisconsin Trust Requirements.
Wisconsin trusts are primarily governed by the Wisconsin Trust Code, enacted by the legislature at WI Stat., ยงยง701.0101, et. seq.ย The purpose of a Wisconsin trust must be lawful and capable of being achieved.ย In general, the purposes of a trust and the trust itself must be for the benefit of the trustโs beneficiaries.ย ย ย
To create a valid trust under Wisconsin law, the settlor must express an intent to create a trust and have adequate capacity (measured under the same standard applying to wills). Alternatively, a trust may be created by an authorized guardian or conservator.ย A Wisconsin trust is void to the extent its creation was induced through fraud, duress, or undue influence.
Additionally, Wisconsin trusts must have a definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes) and a trustee with actual duties to perform.ย The sole trustee of a Wisconsin trust cannot also be the trustโs sole beneficiary.ย Trustees who manage assets are governed by the โprudent investor ruleโ and must exercise reasonable care, skill, and caution in carrying out their duties.ย ย
Wisconsin trusts can be created through transfer of property by a grantor to a trustee (either during life or through a will or other testamentary instrument), a grantorโs declaration that identifiable property is owned as trustee, a declaration of the intent to create a trust with the expectation that property will be transferred to the trust, by exercising a power of appointment in favor of a trustee, or through a court order establishing the trust.ย ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Wisconsin law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence. ย Unless a Wisconsin trust is expressly made irrevocable, the settlor is assumed to retain the power to revoke or amend the trust.ย ย
Wisconsin trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purposes become unlawful or impossible to achieve.ย A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย Or, in some circumstances, modification or termination of a trust may be made upon the consent of the trustee and all beneficiaries.ย Upon petition, a court may also retroactively reform or modify the terms of a trust for the benefit of a disabled individual to maintain eligibility for public assistance.
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Wisconsin Basic Will:ย The โWisconsin Basic Willโ is a form published by the Wisconsin legislature (at WI Stat. ยง853.55).ย It is intended as a relatively simple template for creating a will valid under Wisconsin law.ย If completed, executed, and witnessed correctly and in full, a Wisconsin Basic Will is considered valid and admissible in probate.ย As a fill-in-the-blank form, the Basic Will can be useful for testators with relatively small, simple estates with little need for customization.ย The legislature also provides for a โWisconsin Basic Will with Trustโ (at WI Stat. ยง853.56) that includes a trust for care of children.
Estate Taxes: Wisconsin does not impose either estate or inheritance taxes.ย Large Wisconsin estates may still be liable for federal estate taxes.
Simplified Probate:ย Wisconsin law allows for informal administration of small estates (defined as $50,000 or less) through Summary Settlement, Summary Assignment, or Transfer by Affidavit.ย Summary Settlement can be used if a decedent leaves a surviving spouse or minor childrenโor if the estateโs value is not more than specified expenses (e.g., costs of administration, final expenses, etc.) and allowable exemptions.ย Summary Assignment is available for some small estates that are not eligible for Summary Settlement. Transfer by Affidavit allows an individual to undertake certain responsibilities for the estate and transfer property outside probate under appropriate circumstances.ย Informal administration is not permitted for estates over $50,000 or intestate estates in which not all interested parties consent to informal administration.
Marital Property:ย Wisconsinโs โmarital propertyโ system is similar to the โcommunity propertyโ systems used in a few other states.ย Under Wisconsinโs Marital Property Act, most assets and income acquired by either spouse during a marriage are assumed to belong to both spouses equally, unless they agree otherwise.ย As such, married Wisconsin residentsโ assets often include a significant amount of marital property.ย Married individuals can distribute separate property (e.g., property owned prior to the marriage or obtained via inheritance) and their one-half interest in marital property by will.ย A couple can also agree to own some or all marital property with a right of survivorship, in which case full ownership vests in the surviving spouse upon the other spouseโs death.ย ย
Non-Probate Transfers:ย Along with living trusts, Wisconsin law offers multiple other options for transfer of assets outside of probate.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Wisconsin does not recognize tenancy by the entireties, but โsurvivorship marital propertyโ results in a similar outcome for purposes of bypassing probate.
Survivorship marital property (or โmarital property with right of survivorshipโ) is a form of co-ownership Wisconsin allows for spouses.ย Upon one spouseโs death, the surviving spouse acquires undivided title to any survivorship marital property owned by the couple.ย Spouses may also enter into a marital property agreement, which allows for non-probate transfer of property owned by either spouse or both spouses.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can be used in Wisconsin for a variety of assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Wisconsin recognizes transfer-on-death designations on real estate deeds (commonly called โTOD deedsโ or โbeneficiary deedsโ). ย The TOD designation is included within a validly recorded deed during life, and ownership of the real estate automatically transfers to the named beneficiary upon the ownerโs death.ย The beneficiary, though, does not acquire present rights over the real estate until death actually occurs.
Wisconsin does not recognize TOD designations on vehicle titles.
Spousal Shares: If a married Wisconsin decedent is intestate, the surviving spouse receives the entire estate unless the decedent is survived by children who are not also the children of the surviving spouse.ย In that case, the surviving spouse receives a one-half interest in individual property and one-half of the decedentโs interest in marital property.ย ย
Wisconsin also allows surviving spouses to elect a one-half interest in a decedent spouseโs โaugmented deferred marital property estate.โย Essentially, a surviving spouse can claim up to fifty percent of the portion of a decedentโs estate that did not qualify as marital property.ย The augmented estate includes the decedentโs probate estate, some assets transferred outside probate, and the value of the surviving spouseโs estate that would have qualified as deferred marital property (had the surviving spouse died first).ย ย
Wisconsin Spendthrift Trusts:ย Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, Wisconsin law recognizes โspendthrift provisions,โ which prevent creditors of beneficiaries from attaching trust assets until actually distributed to the relevant beneficiary.ย To be effective, a spendthrift trustโs beneficiaries must be either someone other than the trustโs settlor or disabled.ย Spendthrift provisions do not protect against attachment to satisfy child support obligations.ย ย
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims).ย In the case of irrevocable trusts, settlorsโ creditors can attach trust assets that could be distributed for the settlorโs benefit (unless the irrevocable trust is for the benefit of a disabled person).ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
