Wisconsin Probate and Intestate Succession: What Happens Without a Will (2026)

Wisconsin probate is handled by the Circuit Court of the county where the decedent lived, sitting in probate, with the county's Register in Probate managing most filings and supervising the state's common informal-administration track under Wis. Stat. ch. 865.

Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.

How Probate Works in Wisconsin

Wisconsin probate is a Circuit Court function. Wis. Stat. § 851.04 defines "court," for probate purposes, as the circuit court of the county where the case is filed, or a judge assigned to exercise probate jurisdiction there. In practice, each county's Register in Probate, a non-judicial officer appointed by the county's circuit judges under Wis. Stat. §§ 851.71 to 851.73, handles the day-to-day filings and supervises the state's informal administration process on the court's behalf. The circuit court itself remains the probate court of record.

Wisconsin has not adopted the full Uniform Probate Code, but it independently runs a genuine two-track system. Informal administration, governed by Wis. Stat. ch. 865, is supervised by the Register in Probate without continuous judge involvement, does not require an attorney, and is the form most Wisconsin estates use. Chapter 856 covers the general estate-opening steps, such as filing the will and the petition for administration, that precede either track. Formal administration, by contrast, is supervised directly by a circuit court judge and requires an attorney. Wisconsin law channels an estate into formal administration in specific situations. Under Wis. Stat. § 865.02(2), informal administration cannot be used at all where the will expressly prohibits it. Otherwise, § 865.02(1)(a) allows informal administration in a testate case where the will does not prohibit it, the person named as personal representative accepts that appointment, and bond is furnished if required. If the named personal representative declines to serve, or the decedent died intestate, informal administration remains available under § 865.02(1)(b), but only if every interested person requests or consents in writing both to informal administration and to the appointment of the same personal representative, and bond is furnished if required. Without that unanimous written consent, the estate proceeds under formal administration. The Register in Probate decides whether informal administration is appropriate for a given estate, and by statute cannot give legal advice even if that particular Register happens to be an attorney.

Once an application for administration is filed, the court, or the probate registrar in an informal case, must set a creditor-claims deadline that is not less than three and not more than four months from the date of that order, under Wis. Stat. § 859.01. Claims not filed by that deadline are barred against the estate, the personal representative, and the heirs or beneficiaries under § 859.02, and this deadline cannot be waived by agreement.

Intestate Succession in Wisconsin: Who Inherits Without a Will

Wisconsin's intestate succession statute, Wis. Stat. § 852.01(1)(a), starts from a straightforward rule and then layers in a distinctly Wisconsin wrinkle tied to the state's marital property system. A surviving spouse or registered domestic partner takes the entire estate if the decedent has no surviving issue, or if every surviving issue is also issue of that surviving spouse or partner. Where the decedent leaves surviving issue and one or more of them are not issue of the surviving spouse or partner, a blended-family case, the rule changes: the spouse or partner takes one-half of the decedent's property other than two excluded categories set out in Wis. Stat. § 852.01(1)(a)2: the decedent's interest in marital property, and the decedent's interest in property held equally and exclusively with the surviving spouse or domestic partner as tenants in common. Those two categories pass instead to the decedent's issue rather than to the spouse. That split exists because Wisconsin's Marital Property Act, Wis. Stat. ch. 766, already vests the surviving spouse with ownership of their own half of marital property automatically, independent of intestacy, so the intestate statute only needs to redirect the decedent's remaining interest.

It is worth stating plainly: Wisconsin is a community property state, and the IRS counts it as one of the nine. The difference is terminology rather than substance. Wisconsin enacted the Uniform Marital Property Act, so its statutes say "marital property" throughout, and Wis. Stat. § 766.001(2) provides that "it is the intent of the legislature that marital property is a form of community property." Wisconsin's version still carries its own statutory rules and its own case law, so do not assume that a result from Texas or California transfers over unchanged.

Children's and other issue's shares are distributed per stirpes. If there is no surviving spouse or partner and no issue, the estate passes to the decedent's parents under § 852.01(1)(c). If no parents survive, it passes to the decedent's siblings and the issue of any deceased sibling, per stirpes, under § 852.01(1)(d). If none of those survive, the estate splits equally between the decedent's paternal and maternal grandparents or their descendants, with the entire estate going to one side if the other side has no survivors, under § 852.01(1)(f). If the decedent has no heirs at all, the estate escheats to the state to be added to the capital of the school fund under § 852.01(3).

One way to make sure your property goes to the people you actually choose, rather than following Wisconsin's intestate succession order, is to have a valid will in place. recordinglaw.com's free Wisconsin Last Will and Testament Generator can help you create one, with no account required.

Small Estate and Simplified Probate in Wisconsin

Wisconsin sets its small estate threshold at $50,000 and offers three related mechanisms under Wis. Stat. ch. 867, rather than a single procedure. Summary Settlement, under § 867.01, is available when the estate, net of secured debts, is $50,000 or less and the decedent is survived by a spouse, domestic partner, or minor children. Summary Assignment, under § 867.02, lets the court summarily assign a $50,000-or-under estate without appointing a personal representative at all, for cases where summary settlement is not available. Transfer by Affidavit, under § 867.03, applies to estates with $50,000 or less in gross property value and lets any heir, a revocable-trust trustee, a will-nominated personal representative, or the decedent's guardian at death collect the decedent's money and property and transfer assets by affidavit, without opening a probate case at all. For thresholds, waiting periods and forms, see our guide to the Wisconsin small estate affidavit.

Estate and Inheritance Tax in Wisconsin

Wisconsin levies neither a state estate tax nor a state inheritance tax. Wisconsin repealed its inheritance tax outright in 1992 and has had no state estate tax since. That status is still current: a 2026 legislative proposal to reinstate a state estate tax on deaths occurring after October 31, 2026, Assembly Bill 1029, introduced February 6, 2026, failed to pass pursuant to Senate Joint Resolution 1 on March 23, 2026, so Wisconsin remains a no-estate-tax, no-inheritance-tax state going into the rest of 2026.

Do You Need a Probate Attorney?

Informal administration in Wisconsin is specifically designed to work without an attorney, and the Register in Probate can walk a personal representative through the paperwork, though not give legal advice. If the will prohibits informal administration or the interested persons cannot all agree in writing, ask a Wisconsin probate lawyer for a free case evaluation on taking the estate through formal administration (attorney advertising). An attorney is also worth engaging for a blended family navigating the marital-property split described above, a business interest in the estate, or any estate near the $50,000 small-estate threshold where the choice of mechanism matters. See Probate by State for how Wisconsin's approach compares to neighboring states.

Disclaimer

This article provides general information about probate and intestate succession in Wisconsin as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in Wisconsin, particularly for a contested estate, a business interest, a blended family, or an estate raising marital-property questions. Figures, thresholds, and program details change; verify current details directly with the official source before relying on any figure here.

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Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.

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Frequently Asked Questions

What court handles probate in Wisconsin?

The Circuit Court of the county where the decedent resided, sitting in probate, under Wis. Stat. § 851.04. Each county's Register in Probate handles most filings and supervises informal administration.

What happens if you die without a will in Wisconsin?

Wisconsin's intestate succession statute, Wis. Stat. § 852.01, controls. A surviving spouse or domestic partner takes everything if all issue are shared; if some issue are not the spouse's, the spouse gets half of the decedent's property other than two excluded categories, the decedent's interest in marital property and property the decedent held equally and exclusively with that spouse as tenants in common, both of which pass to the issue instead.

What is the small estate limit in Wisconsin?

$50,000, under Wis. Stat. ch. 867. Depending on the situation, an estate at or below that threshold may qualify for Summary Settlement, Summary Assignment, or Transfer by Affidavit.

Is Wisconsin a community property state?

Yes. Wisconsin is one of the nine community property states the IRS recognizes. Its statutes use the term 'marital property' under the Marital Property Act, Wis. Stat. ch. 766, because Wisconsin enacted the Uniform Marital Property Act, and Wis. Stat. § 766.001(2) provides that the legislature intends marital property to be a form of community property.

Does Wisconsin have an inheritance tax or estate tax?

No. Wisconsin repealed its inheritance tax in 1992 and has no state estate tax. A 2026 proposal to add a new state estate tax failed to pass.

How long do creditors have to file a claim against a Wisconsin estate?

Not less than three and not more than four months from the date of the court's order setting the claims deadline, under Wis. Stat. § 859.01. This deadline cannot be waived, and late claims are generally barred under § 859.02.

Do you need a lawyer for probate in Wisconsin?

Not for informal administration, which is designed to be handled without an attorney. Formal administration, required where the will prohibits informal administration or the interested persons do not all consent in writing to informal administration and the same personal representative, does require an attorney.