My Parents Don't Have a Will. What Could Go Wrong?

10.22.2026

Author:  Attorney Eric S. Johnson.

I often hear a version of the following: “Mom and Dad never got around to making a Will, but we all know what they want. It’ll be fine.”

Occasionally, that is true. Wisconsin’s default inheritance laws, however, often produce results that surprise (and may disappoint) everyone.

If a Wisconsin resident dies without a valid Will, that person is said to have died “intestate.” In that situation, Wisconsin law decides who receives the deceased’s property. The family does not get to choose the outcome, and the result may be very different from what the deceased actually wanted.

 Wisconsin Has a Plan for You

Many people assume that if they die without a Will, everything automatically goes to their spouse. That is not always true.

Likewise, adult children or step-children may assume they will inherit because they were close to the deceased or because they helped care for them. Unfortunately, Wisconsin’s intestacy laws do not consider who was closest, who helped the most, or what family members expected to happen.

Instead, the law follows a fixed set of rules. Those rules are too numerous and detailed to describe in full here. In very traditional families (first marriage with all children being the biological children of both spouses) things work as most would expect: everything to the surviving spouse upon the death of the first spouse to die and to the children equally upon the second spouse’s death. Any deviation from those facts, however, leads to drastically different results.

 Second Marriages Can Produce Unexpected Results

Second marriages are where intestacy problems often become most apparent. Consider this example:

Stephen and Sandra are married. Stephen has two children from a previous marriage. Sandra has no children.

Stephen dies without a Will.

Many people assume Sandra would inherit everything. Instead, Wisconsin’s intestacy laws essentially split the marital assets in half, with Stephen’s half of the marital assets going to his children and Sandra keeping her half of the marital assets.

The result may be exactly the opposite of what Stephen intended. Stephen may have wanted Sandra to have complete financial security for the rest of her life. His children may have expected to inherit only after Sandra’s death. Instead, they may find themselves sharing ownership of inherited property immediately.

 The House Problem

When real estate is involved, the result can be even more chaotic.

 Imagine that Stephen and Sandra from our prior example live in a home that is titled solely in Stephen’s name.

Sandra naturally assumes she can continue living in the home because she has lived there for years (maybe decades). However, the ownership of the property may now be divided between Sandra and Stephen’s children under Wisconsin’s default inheritance rules.

If Sandra wants the security and certainty of fully owning the home, she may need to purchase her step-children’s ownership in the home.

The Child Who Helped the Most

A caregiver may assume that effort translates into inheritance.

 Assume that one of Stephen’s children, Jane, drove Stephen to appointments, managed his medication, helped him take care of his home and remain independent for years. Stephen’s other children rarely visit – they may even be estranged.

After Stephen’s death, Jane expects to receive a larger share because of all the assistance that she provided.

Wisconsin’s intestacy laws generally do not reward effort, sacrifice, or proximity. Unless there was a valid estate plan providing otherwise, the children will inherit according to the legal rules, not based on who helped the most.

Jane may receive exactly the same inheritance as her siblings who contributed very little.

 The Good News: A Will (or Trust) Lets You Choose

The solution to many of these problems is surprisingly straightforward.

A Will or Trust allows you to opt out of Wisconsin’s default intestacy rules and create your own plan.

Instead of letting lawmakers decide, you can choose:

• Who receives your property.
• Who is in charge of administering your property.
• Whether stepchildren or children from prior relationships are treated differently.
• Whether a surviving spouse receives everything or only certain assets.
• How family heirlooms are distributed.
• How and when beneficiaries receive their inheritance.

A properly drafted Will or Trust allows your estate plan to reflect your goals rather than the assumptions built into state law.

 The Hidden Complication: Wisconsin Marital Property Law

Even a properly drafted Will does not solve every question.

Wisconsin is a marital property state. As a result, determining who owns property is not always as simple as looking at whose name appears on an account, deed, or vehicle title.

For example:

• An account titled in one spouse’s name may still contain the non-named spouse’s marital property interest.
• A retirement account that received contributions after marriage may be subject to claims of the non-titled spouse.
• Real estate titled in the name of one spouse can become partly owned by both spouses through improvements, mortgage payments, and other expenses made during the marriage.

Because Wisconsin’s Marital Property Law can make ownership questions more complicated, some couples choose to enter into a Marital Property Agreement.

A Marital Property Agreement can provide greater clarity regarding:

• What property belongs to whom.
• What happens at the death of either spouse.
• How property should pass in blended-family situations.

A valid Marital Property Agreement allows the spouses to select the ultimate recipients of their assets free from marital property claims of the other spouse. This additional certainty can help reduce misunderstandings, family conflict, and expensive disputes after a death.

 Conclusion

If your parents do not have a Will or Trust, Wisconsin already has an estate plan for them. However, it may not be the plan they would have chosen. This is especially true for second marriages and blended families.

A well-drafted Will or Trust allows individuals to tailor their plan to their family and goals. For those seeking even greater certainty, a carefully drafted Marital Property Agreement may provide valuable additional protection and clarity.

If you or a loved one does not have a Will or Trust in place, now is a great time to take steps to create one. If you are gently encouraging a loved one to create an estate plan, it is important that you are not involved in the process beyond the suggestion to get started. Participating in meetings with a parent’s estate planning lawyer can raise questions about the parent’s independence and may lead to issues regarding the enforceability of the plan.

The best time to address these questions is before a crisis occurs, not after a family is left trying to untangle what someone “would have wanted.”