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Making a Will in Wisconsin

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Writing Your Will in Wisconsin

September 8, 2008

To create a will in Wisconsin, the person creating the will (known as the testator) must be able to:

put their will in writing
understand the meaning of the document
be free of undue influence or duress, and
sign it in front of two witnesses.

A will remains in full effect until a new will replaces it or it is revoked. Written amendments to the will in the form of codicils require the same signing and witness formalities as a will.

The state of Wisconsin does not recognize holographic wills. A holographic will is one written in the testator's handwriting but not signed by any witness. See our interactive map on holographic wills for more information. Oral wills are not recognized in Wisconsin.

Limitations on Wills in Wisconsin

In Wisconsin, a surviving spouse has a right to either accept the gift under a will or choose to take his percentage of the spouse's estate as defined by state law. A will cannot distribute property that is co-owned or has a designated beneficiary, such as a life insurance policy. Additionally, a will cannot force a beneficiary to commit an act that is against the law or public policy in order to inherit under the will.

The Probate Process in Wisconsin

Probate is the court-supervised process in which a will's assets are transferred to the beneficiaries. The executor named in the will starts the process by filing the will with the probate court. He then gathers the assets, pays any creditor claims or bills, and following court approval, distributes the assets according to the will's instructions.

A beneficiary disputing the validity of the will may contest the will during probate of the estate. Generally, the beneficiary will allege that the will failed to comply with one or more of the legal requirements necessary to create a will.

If a person dies intestate (without a will), the court appoints an administrator to handle the estate. The decedent's assets are then distributed according to the Wisconsin statutory scheme for intestate distribution.

Advantages of a Will

One of the primary benefits of a will is that the testator maintains a degree of control over how his assets will be distributed following death and how his children (and their property) will be cared for. Without a will, the potential heirs of an estate will have to spend money and time to determine who will receive a share of the estate. In those cases, the estate will be distributed according to state intestacy laws and unintended beneficiaries, such as distant relative, may receive a share of the estate. If no relatives survive to take under intestacy law, the entire estate could potentially escheat to the state.

Questions & Answers: Making a Will in Wisconsin

From the time the testator meets with the attorney and provides all information, what is the professional standard of timeliness in creating/completing a will. For instance, if an ...

Hi Kim, While there is not a specific standard for timeliness, certainly a delay of three months in the preparation of a will for an elderly client seems a violation of the applica...

The situation described above is real. The 82 yr. old man is my father. On Feb 18th my sister and her husband who are lawyers, offered to meet with my Dad, my sister-in-law, and my...

There could very well be a conflict of interest if the lawyers responsible for advising on and drafting a will are beneficiaries, and courts would also be concerned about them havi...

I am writing my will without attorney and have had it witnessed by two and notarized anything else i need to do...

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Comments (5) add comment

Kim M. Conant,RN: ...

From the time the testator meets with the attorney and provides all information, what is the professional standard of timeliness in creating/completing a will. For instance, if an 82 year-old with difficult to control diabetes, coronary artery disease, high blood pressure and several recent strokes meets with attorney and comes fully prepared with all information, is it reasonable for the attorney to "sit on the project" and do nothing to complete the deliverable for over three months. In this example, the will still hasn't been completed, and the attorney has been asked several times about the hold-up, but just states (we've been too busy)

May 12, 2012

Steven Daily: ...

Hi Kim,
While there is not a specific standard for timeliness, certainly a delay of three months in the preparation of a will for an elderly client seems a violation of the applicable Wisconsin Rules of Professional Conduct for Attorneys, specifically Rule 1.3:

"A lawyer shall act with reasonable diligence and promptness in representing a client."

The American Bar Assoc. official comment to this Rule is as follows:

"Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances...the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness."

Under the circumstances you should consider either retaining a different attorney, or letting the original attorney know that you intend to file a formal grievance with the Wisconsin Office of Lawyer Regulation if the will is not provided within 14 days. You may contact that office here:

http://www.wicourts.gov/services/public/lawyerreg/file.htm

Good luck to you Kim

May 13, 2012

Kim M. Conant,RN: ...

The situation described above is real. The 82 yr. old man is my father. On Feb 18th my sister and her husband who are lawyers, offered to meet with my Dad, my sister-in-law, and myself to collect information to draw up a new will and change Powers of Attorney and Executors. They told us they didn't think this was a conflict of interest. We said OK-you know more than we do. My father provided all of the usual information and conveyed his desires. I took notes. A new POA was to be drawn up for me (I had one that Dad's attorney gave me in 1995 that my sister said was no longer valid) within a week, the will was to be given to the meeting attendees mentioned above within two week for review and comment, and my sister and husband were to finalize the will and bring it to my dad to be signed and witnessed. We're far past the deadlines they committed in the meeting and when I inquired last week as to where things are at - I don't have anything yet, not even the POA - and I was told privately by my sister-in-law (my Dad lives with her at her and my brother's home) that Dad has been starting to forget to pay some bills - My sister and her husband told me that it's none of my business, they are going to do what they think is right, won't acknowledge anything that Dad decided during our meeting, and refuse to tell me ANYTHING! I sent them many long emails containing my notes from the meeting and reminding them of their commitments and how a number of family member would be hurt (Dad intended for his truck and camper to go to my youngest brother, the rights to my Mom's (deceased) cookbook to go to my niece etc. and until they do their job, I have no idea who can help him if he doesn't remember to pay his bills. No matter what I point out, I'm blown off, so I finally said "I'm out of this - all responsibility for everything - his care, bills, everything. You - my sister-in-law (lawyer) and your husband Dave ( lawyer) are now responsible for everything concerning Dad, because you've seen to it that I have no standing anymore." And a weirder thing yet is: Dad had given me all of his life ins stuff, wishes for funeral arrangements, POA, had asked me to be his executor, etc. I learned during our Feb. 18th meeting that my sister changed his POA and POHA right before his carotid surgery and never told me until February 18, 2012 at our meeting, but otherwise, his wishes expressed during the "will meeting" remained unchanged. But now, I haven't got a clue what my sister and husband are doing. I'm the oldest child. During my career I've been deeply involved in legal affairs (consultant to law firms with respect to environmental compliance & enforcement/EPA/WDNR/ litigation - I was President of ECCI and am current president of eercaf.org, and in hindsight, given what has happened and that I have no clue now what I am supposed to do, I believe I should have said to my sister and her husband (I kind of thought I should do so at the time, but didn't) "No, if anybody has a problem with the will, it's a slam dunk that a judge will find that there was a conflict of interest. What should I do?

May 14, 2012

Steven Daily: ...

There could very well be a conflict of interest if the lawyers responsible for advising on and drafting a will are beneficiaries, and courts would also be concerned about them having undue influence. But since you don't know whether there is a will, it seems premature to raise an objection to a document you have not seen. If you suspect that there has been financial exploitation of your father, you can report this to the county authorities. More information on that is available here:

http://www.dhs.wisconsin.gov/aps/Contacts/eaaragencies.htm

May 14, 2012

mary ann steppke: ...

I am writing my will without attorney and have had it witnessed by two and notarized anything else i need to do

June 04, 2012