New to estate planning? You’re in the right place. A living trust is a legal document that holds your family’s assets so they pass directly to your loved ones — no probate court, no delays, no public record. That’s the core idea.
If you’re just starting to figure this out, I’d suggest reading Having the Estate Planning Talk with Your Parents first — it walks through the whole picture and how to get the conversation started. Then come back here for the Wisconsin-specific rules.
Already know the basics? Keep scrolling — everything below is specific to Wisconsin.
You’re not alone in this. As someone who went through the estate planning process with my own aging parents, I know the weight of these conversations — the awkwardness, the guilt, the fear that you’re not doing enough or doing it too late. Take a breath. You’ve found the right place, and Wisconsin has some unique rules that actually work in your family’s favor — if you know about them.
Here’s the headline most Wisconsin families don’t know: Wisconsin is the only state in America that adopted community property by legislation. The 1986 Marital Property Act (Chapter 766) means every married couple in Wisconsin automatically owns most assets acquired during marriage on a 50/50 basis. And here’s why that matters for estate planning: when one spouse dies, both halves of marital property receive a stepped-up basis to fair market value — not just the decedent’s half. In common-law states, only half gets stepped up.
That double step-up in basis can save a surviving spouse thousands — sometimes tens of thousands — in capital gains taxes when they sell the family home, investments, or other appreciated assets. But here’s the catch: you have to title assets correctly to preserve it. Get the titling wrong, and you lose the advantage.
Wisconsin also has no state estate tax, no inheritance tax, and no gift tax. Combined with the double step-up, it’s one of the most tax-friendly states in the country for estate planning. Whether your family owns a dairy farm in Door County, a lakefront cottage in the Northwoods, or a home in the Milwaukee suburbs — here’s everything you need to know. No legal jargon, just clear answers from a son who’s been through it.
The Marital Property Act: Wisconsin’s Most Important Estate Planning Law
Key fact: Wisconsin’s Marital Property Act (Chapter 766, effective January 1, 1986) makes Wisconsin a community property state — the only one that adopted it through legislation rather than colonial inheritance or constitutional provision. The IRS recognizes Wisconsin marital property as community property under IRC Section 1014(b)(6), which means the double step-up in basis applies.
In the other eight community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington), community property came from Spanish or French colonial law, or in Alaska’s case, from an opt-in statute. Wisconsin took a different path — the legislature studied the Uniform Marital Property Act and adopted it wholesale, creating a statutory community property system using different terminology.
How Property Classification Works
Under Section 766.31, all property of spouses is presumed marital property. Each spouse holds a present, undivided one-half interest. The classification starts on the “determination date” — the latest of:
- The date of marriage
- January 1, 1986 (when the Act took effect)
- The date both spouses become Wisconsin domiciliaries
Property falls into three categories:
- Marital property — acquired during marriage after the determination date (the default for most assets)
- Individual property — acquired before the determination date, or received as gifts or inheritances during marriage
- Mixed property — when individual property is commingled with marital property
The Double Step-Up: Why It Matters
Here’s a concrete example. Suppose your parents bought stock for $50,000 during their marriage. It’s now worth $300,000. In a common-law state, when one spouse dies, only the decedent’s half ($150,000) gets a step-up to fair market value. The surviving spouse’s half retains the original $25,000 basis. If the surviving spouse sells the stock, they face capital gains tax on approximately $125,000.
In Wisconsin, because the stock is marital property, both halves receive a step-up to $300,000 total. If the surviving spouse sells it, they face zero capital gains tax. On $125,000 in avoided gains at current federal rates, that’s roughly $18,750 to $29,375 in tax savings — from one rule most Wisconsin families don’t even know exists.
This applies to everything classified as marital property: the family home, investment accounts, business interests, farm equipment, and real estate. The key requirement is that the assets must actually be classified as marital property — individual property only gets a half step-up.
Survivorship Marital Property: The Titling That Matters
Under Section 766.60, spouses can hold title as “survivorship marital property.” This is Wisconsin’s unique tool that combines two benefits:
- Probate avoidance — on death, ownership vests solely in the surviving spouse by nontestamentary disposition
- Double step-up preserved — because it’s marital property, both halves receive the stepped-up basis
Critical titling warning: You must use the exact phrase “survivorship marital property” in the title. If the deed says only “marital property” (without “survivorship”), the property converts to tenancy-in-common at death — meaning it goes through probate. And if you title it as “joint tenancy,” you lose the double step-up advantage. The specific words on the deed matter enormously.
Marital Property Agreements
Under Section 766.58, spouses can execute a Marital Property Agreement (MPA) — a broader tool than a standard prenuptial agreement. An MPA can reclassify property, direct how property passes at death, and serve as a comprehensive probate avoidance tool. Section 766.58(3)(f) specifically allows spouses to provide that upon death, any property — including after-acquired property — passes without probate by nontestamentary disposition.
For couples who prefer not to create a full trust, a Marital Property Agreement is a Wisconsin-specific alternative for keeping assets out of probate. That said, a revocable living trust provides additional benefits (incapacity protection, multi-state coverage, privacy) that an MPA alone does not.
Two Trust Types in Wisconsin
Wisconsin adopted a modified Uniform Trust Code via 2013 Wisconsin Act 92, codified in Chapter 701 (effective July 1, 2014). Under Section 701.0602, a trust is presumed revocable unless the terms expressly state it is irrevocable.
Revocable Living Trust
- Avoids probate — assets in the trust pass directly to beneficiaries
- You maintain full control — revocable and amendable during your lifetime
- Provides privacy — trust assets stay out of public court records
- Provides incapacity protection — successor trustee steps in without court guardianship
- Avoids ancillary probate — essential if you own property in Illinois or other states
- Works alongside survivorship marital property titling and MPAs
- Caution: Wisconsin’s expanded Medicaid estate recovery reaches into revocable trusts (since August 2014)
Irrevocable Trust
- Once established, you give up control — the trade-off for asset protection and Medicaid planning
- Medicaid protection — irrevocable trusts funded 5+ years before application can protect assets from the 60-month lookback
- Directed trust — family retains investment or distribution control; trustee handles administration (Section 701.0808)
- Trust protectors — can be appointed with fiduciary or non-fiduciary powers (Section 701.0818)
- Decanting available — trustee can transfer assets from one irrevocable trust to another with modified terms (Section 701.0418)
- No DAPT — Wisconsin does not allow self-settled asset protection trusts
- Trust duration limited to lives in being plus 30 years (Sections 700.16-700.18) — no perpetual dynasty trusts
Wisconsin Rules at a Glance
Probate Rules
- Court system: Circuit Courts (trial courts of general jurisdiction), with Register in Probate in each county
- Informal administration: No continuous court supervision, no attorney required for estates ≤$50,000
- Summary settlement/assignment: Estates ≤$50,000 (less secured debts) — Sections 867.01, 867.02
- Transfer by affidavit: Solely owned property under $50,000 — avoids probate entirely (Section 867.03)
- Creditor claims period: 3-4 months from court order
- Filing fees: $20 for estates ≤$10,000; 0.2% of estate value for larger estates
- Attorney fees: No statutory schedule — reasonable compensation; typically $200-$500/hour
- Typical timeline: 6-9 months simple; 6-12 months average; complex estates 1+ year
Tax Rules & Property
- No state estate tax (eliminated for deaths after Dec 31, 2007)
- No state inheritance tax (repealed 1992)
- No state gift tax
- State income tax: 3.50% to 7.65% (applies to trusts at compressed brackets)
- Real estate transfer fee: $0.30 per $100 of value (0.30%)
- Marital property state (community property by legislation)
- TOD deeds: Available (Section 705.15, updated by 2025 Act 60)
- Tenancy by the entirety: Not recognized
- Survivorship marital property: Wisconsin’s unique probate-avoidance titling with double step-up
- Homestead exemption: $75,000 individual / $150,000 married (Section 815.20)
Wisconsin’s Expanded Medicaid Estate Recovery: A Critical Warning
Wisconsin is one of the most aggressive Medicaid estate recovery states in the nation. Since Wisconsin Act 20 (key date: August 1, 2014), recovery extends far beyond probate assets. The state can seek reimbursement from revocable trust property, joint tenancy property, life estates, life insurance proceeds (policies opened on or after 8/1/2014), POD/TOD accounts, and even the estates of surviving spouses. This affects all Medicaid services received by members age 55+ in Family Care, Family Care Partnership, IRIS, and PACE.
This is the single most important long-term care planning fact in Wisconsin: a revocable living trust does NOT protect assets from Medicaid recovery. The state’s expanded definition reaches into virtually every non-probate transfer tool that families typically use to avoid both probate and Medicaid recovery.
What does provide protection:
- Irrevocable trusts funded more than 60 months before Medicaid application (outside the lookback period)
- Spend-down strategies that reduce countable assets before application
- Assets exempt from recovery: the home while a surviving spouse, child under 21, or blind/disabled child lives there
- Hardship exemption — available if recovery would cause an heir to become eligible for SSI, FoodShare, or Medicaid
If your parents are approaching the age where long-term care may be needed, consult a Wisconsin elder law attorney sooner rather than later. The 60-month lookback means planning must start at least five years before potential Medicaid application.
Official Sources
Chapter 766 — Marital Property Act · Chapter 701 — Trust Code · Chapter 867 — Summary Procedures · Section 705.15 — TOD Deeds · Section 815.20 — Homestead · Chapter 244 — Power of Attorney · WI DHS — Medicaid Estate Recovery · State Bar of Wisconsin
What Estate Planning Costs in Wisconsin
| What You’re Paying For | Typical Range in Wisconsin | When You’d Use It |
|---|---|---|
| Simple will | $200 – $850 | Single person, straightforward assets |
| Revocable living trust (individual) | $600 – $3,000 | Individual wanting to avoid probate and plan for incapacity |
| Full estate plan (married couple — trust + will + POA + directives) | $1,500 – $3,500 | Most families — ensure survivorship marital property titling is included |
| Complex trust work (irrevocable, Medicaid planning, farm succession) | $3,000 – $7,000+ | Medicaid planning, multi-generational farm transfers, or IL cross-border issues |
| Trust administration after death | 1-3% of trust assets or hourly billing | Settling a trust estate after a parent’s death |
Wisconsin-specific planning note: Make sure any estate plan addresses survivorship marital property titling, the double step-up in basis, and Wisconsin’s expanded Medicaid estate recovery. A generic estate plan that doesn’t account for the Marital Property Act will miss the biggest planning opportunities — and risks — unique to this state. The State Bar of Wisconsin’s Lawyer Referral Service can connect you with trust and estate specialists.
With a Trust vs. Without (Probate) in Wisconsin
| Factor | With a Living Trust | Without (Probate) | Why It Matters |
|---|---|---|---|
| Timeline | Weeks to a few months | 6-12 months typical; complex estates 1+ year | Your family waits months for assets to transfer |
| Cost | $600-$3,500 (one-time trust creation) | $20 filing + 0.2% of estate + attorney fees (2-5%) | On a $500K estate, probate can cost $5,000-$15,000 |
| Privacy | Completely private | Public record — filed with county Circuit Court | Anyone can see what your parents owned and who receives it |
| Court involvement | None | Required — Circuit Court, Register in Probate | Even informal administration requires court filing and creditor notice |
| Real estate | Property in trust passes immediately | Goes through probate (TOD deed or survivorship marital property titling also avoids probate) | Multiple probate avoidance options in WI — trust is the most comprehensive |
| Multi-state property | No ancillary probate needed | Separate probate in each state where property is located | WI families with Illinois or Northwoods property in other states face ancillary probate |
| Incapacity protection | Successor trustee steps in seamlessly | Court-supervised guardianship needed | Guardianship is public, expensive, and emotionally difficult |
| Double step-up | Preserved if trust holds marital property correctly | Preserved for marital property (but lost if titled as joint tenancy instead) | Titling matters — joint tenancy loses the double step-up advantage |
| Medicaid recovery | Revocable trust: exposed (WI uses expanded recovery since Aug 2014) | Exposed | Wisconsin recovers from both probate and non-probate assets — only irrevocable trusts outside lookback provide protection |
Estate Planning Readiness Checklist for Wisconsin
Estate Planning Readiness Checklist — Wisconsin
Check each item you feel confident about. Your progress is saved automatically.
Most families begin exactly where you are. Here are the best next steps:
- What Is a Living Trust? — the complete beginner's guide
- Having the Estate Planning Talk — how to start the conversation
- How to Avoid Probate — why this matters
You have a solid foundation. Fill in the remaining gaps:
- Funding Your Trust — how to retitle assets
- The 5 Documents Every Family Needs
- Estate Tax & Gift Tax Guide
You understand the fundamentals and you're prepared to work with a professional. The next step is finding an estate planning attorney who knows Wisconsin law.
Common Estate Planning Mistakes in Wisconsin
Wisconsin is a community property state. Most assets acquired during marriage are owned 50/50 by both spouses. This fundamentally changes how trusts are structured and how assets pass at death.
A trust only avoids probate for assets that have been retitled into it. An unfunded trust is just an expensive stack of paper. Real estate, bank accounts, and investments all need to be moved into the trust’s name.
A will does not avoid probate — it goes through it. A will tells the probate court what you want, but the court still controls the process. Only a trust, joint ownership, beneficiary designations, and certain deeds bypass probate entirely.
Retirement accounts (401k, IRA) and life insurance pass by beneficiary designation — not by your will or trust. Outdated designations (like a former spouse) override everything else in your estate plan.
A trust handles what happens after death, but a durable power of attorney and healthcare directive handle what happens if you become incapacitated. Without these, your family may need an expensive court-supervised guardianship.
The best way to avoid these mistakes? Work with an estate planning attorney who knows Wisconsin law. A qualified attorney will catch the state-specific issues that generic online advice misses.
Other Important Planning Tools in Wisconsin
Declaration to Physicians (Living Will)
Wisconsin uses the term “Declaration to Physicians” rather than “living will.” It covers terminal conditions and persistent vegetative states, directing physicians regarding life-sustaining treatment. Requires the principal’s signature plus two adult witnesses. No notarization required.
Power of Attorney for Health Care
Separate from the Declaration to Physicians, this document appoints an agent for all healthcare decisions — not limited to end-of-life situations. Same execution requirements: signed, dated, and witnessed by two adults. Wisconsin provides statutory forms through the Department of Health Services (DHS Form F-00036).
Wisconsin has a POLST (Physician Orders for Life-Sustaining Treatment) program, though adoption has been historically low. POLST is a medical order signed by a healthcare provider — it does not replace a Declaration to Physicians or POA for Health Care. They serve complementary purposes.
Learn more about healthcare directives →
Durable Power of Attorney for Finances (Chapter 244)
Wisconsin powers of attorney for finances are durable by default for documents signed after September 1, 2010 — they remain effective after the principal becomes incapacitated unless expressly stated otherwise. Must be in writing and signed by the principal. Notarization creates a presumption that the signature is genuine. Wisconsin provides a statutory form covering real property, personal property, banking, business operations, insurance, and taxes.
Learn more about powers of attorney →
Long-Term Care Programs
Wisconsin offers several long-term care options: Family Care (managed care), IRIS (Include, Respect, I Self-Direct — self-directed budget), and Family Care Partnership. For nursing home Medicaid, the asset limit is $2,000 for an individual, with a community spouse resource allowance of up to $162,660 (2026). The look-back period is 60 months.
Remember: Wisconsin’s expanded estate recovery (since August 1, 2014) reaches into revocable trusts, joint tenancy, POD/TOD accounts, life estates, and life insurance. Plan early — the 60-month lookback means decisions made today affect eligibility five years from now.
Learn more about long-term care planning →
Farm and Agricultural Estate Planning in Wisconsin
Wisconsin is America’s Dairyland — and farm succession planning is one of the most complex and emotionally charged estate planning challenges in the state. The central tension: how do you pass a working farm to the child who wants to farm it without disinheriting the children who don’t?
- Use-value assessment: Wisconsin farmland is assessed based on agricultural income potential, not development value. This keeps property taxes manageable for working farms — but the full market value is what matters for estate planning purposes.
- Farmland Preservation Credit: $10 per acre for qualifying farmland, which provides modest but ongoing tax relief.
- Agricultural Conservation Easements: Permanently restrict development rights, reducing the farm’s value for estate planning purposes while keeping it in agricultural use.
- IRC Section 2032A — Special-Use Valuation: Federal provision allowing farms to be valued at agricultural use rather than highest-and-best use, potentially reducing the estate’s value by up to $1.39 million (2026).
- The “farming heir” challenge: Consider a family with a $3 million farm and three children — one farms it, two don’t. An equal three-way split forces a sale. A trust or succession plan can give the farming child operational control while providing fair (not necessarily equal) value to the others through life insurance, installment payments, or other arrangements.
UW-Extension’s “Cultivating Your Farm’s Future” program provides resources specifically for Wisconsin farm families navigating succession. This is one area where a Wisconsin attorney experienced in both estate planning and agricultural law is essential.
Illinois Cross-Border: Lake Houses, Snowbirds, and Two Different Property Systems
Thousands of Illinois families own vacation homes in Wisconsin — lake houses in Door County, cabins in the Northwoods, cottages along Lake Geneva. And many families live on one side of the state line and work on the other. These cross-border situations create specific planning challenges:
- Different property regimes: Wisconsin is a marital property (community property) state; Illinois is a common-law state. Property classification can change when families move across the border.
- Ancillary probate: Without a trust, an Illinois resident who owns Wisconsin real property (or vice versa) faces probate in both states. Wisconsin’s ancillary probate process (Chapter 868) can add months and thousands in legal fees.
- Double step-up applies only to Wisconsin marital property: Illinois property owned by a Wisconsin couple doesn’t automatically get the double step-up — the benefit is tied to Wisconsin’s marital property classification.
- Medicaid recovery differences: Wisconsin’s expanded recovery is more aggressive than Illinois’s. Families should plan based on the state where they’ll likely apply for long-term care benefits.
- The solution: A revocable living trust that holds property in both states eliminates ancillary probate entirely. This is the single most common recommendation for cross-border families.
Find a Wisconsin Estate Planning Attorney
Find a Wisconsin Estate Planning Attorney
Wisconsin’s Marital Property Act creates unique planning opportunities — and pitfalls — that attorneys in other states may not understand. Make sure your estate planning attorney is experienced with survivorship marital property titling, the double step-up in basis, and Wisconsin’s expanded Medicaid estate recovery rules.
Use the directories below to find a qualified estate planning attorney in your area, or email us and we’ll point you in the right direction.
Where are you in this journey?
- My parents are getting older — just starting to think about this
- We need a plan now — ready to take action
- Settling an estate — dealing with a parent’s passing
Wisconsin attorney directories:
- State Bar of Wisconsin
- State Bar Lawyer Referral Service — (800) 362-9082
- American College of Trust and Estate Counsel (ACTEC) — Find a Fellow
- National Academy of Elder Law Attorneys (NAELA)
Questions to Ask Before You Hire a Wisconsin Estate Planning Attorney
- How many estate plans do you create per year, and what percentage of your practice involves the Marital Property Act?
- How should we title our assets to preserve the double step-up in basis — survivorship marital property, trust, or both?
- Do we need a Marital Property Agreement, or is a revocable living trust sufficient for our situation?
- How does Wisconsin’s expanded Medicaid estate recovery affect our plan, and what can we do about it?
- We own property in Illinois — how do we avoid ancillary probate in both states?
- What’s included in your flat fee (trust, pour-over will, POA, healthcare directives, deed transfers)?
- Will you help with retitling assets as survivorship marital property and funding the trust?
- We have a family farm — do you have experience with agricultural succession planning?
Recent Wisconsin Updates
- 2025 — Wisconsin Act 60 (TOD Deed Clarification): Updated TOD deed revocation procedures under Section 705.15. Established three clear methods of revocation. Added provisions for multi-owner property — for joint tenants or survivorship marital property, a TOD deed can only be revoked by all living owners.
- No Changes to Core Tax Rules: Wisconsin continues to have no state estate tax (eliminated for deaths after Dec 31, 2007), no inheritance tax (repealed 1992), and no gift tax. The double step-up in basis remains available for all marital property.
- Medicaid Estate Recovery: Wisconsin’s expanded recovery rules (since August 1, 2014) remain in effect. Recovery continues to extend to non-probate assets including revocable trusts, joint tenancy, TOD/POD accounts, and life insurance.
- Homestead: No changes to the $75,000/$150,000 homestead exemption amounts.
- Federal — One Big Beautiful Bill Act (July 2025): Made the $15 million per-person federal estate tax exemption permanent. With no state estate tax and a $15M federal threshold, very few Wisconsin families face any estate tax. The double step-up in basis remains the state’s most valuable estate planning benefit.
Last reviewed: February 2026
Last updated: February 2026. I review Wisconsin’s estate planning rules quarterly and update this page whenever laws change. Bookmark it.
Go Deeper: Estate Planning Guides
| Guide | What You’ll Learn |
|---|---|
| Living Trusts: The Complete Guide | What a living trust is, how it works, and whether your family needs one — the foundation |
| How to Avoid Probate | Every method to keep your family out of court — trusts, TOD accounts, joint tenancy, and more |
| Having the Estate Planning Talk | How to start the hardest conversation your family will ever have — with scripts and strategies |
| Estate Tax Planning | Federal and state estate taxes, gift tax exclusions, and the step-up in basis explained |
| How to Fund Your Trust | The step everyone forgets — how to actually move your assets into your trust |
| The 5 Documents Every Family Needs | Trust, will, powers of attorney, healthcare directive — the complete package |
| Protecting Your Parents’ Legacy | Long-term care, Medicaid, blended families, and the threats nobody warns you about |
| Compare State Estate Planning Rules | See how your state compares on probate costs, estate taxes, and trust-friendly features |