Detailed Answer
Short answer: Usually, yes — once a deceased person’s debts, taxes, and administration costs are paid, any remaining money from the sale of a home becomes part of that person’s estate and is distributed according to the will (or by Wisconsin’s intestacy rules if there is no valid will). However, several common exceptions can remove the home or its sale proceeds from the probate estate entirely or give certain people statutory priority over distribution.
How it normally works under Wisconsin law
When a person dies and owned property in their name alone, that property normally becomes part of the probate estate. The personal representative (executor) appointed under the will or by the court must gather estate assets, pay valid claims (creditors, mortgages, taxes), and pay allowable administration expenses (attorney and executor fees, funeral costs, etc.). After those obligations are satisfied, the representative distributes what remains (the residuary estate) according to the terms of the will. If there is no will, Wisconsin’s intestacy statutes determine who receives the residue.
Resources on how courts handle estates and administration steps are available from the Wisconsin Courts: Wisconsin Courts — Estate Cases. For the text of Wisconsin statutes, see the Wisconsin Legislature statutes site: Wisconsin Statutes.
Common exceptions and real-world situations
- Joint ownership with rights of survivorship: If the home was owned jointly (for example, joint tenancy with right of survivorship), ownership usually passes automatically to the surviving co-owner outside probate. The sale proceeds therefore may belong to the survivor, not the decedent’s probate estate.
- Transfer-on-death deed or beneficiary designation: Wisconsin recognizes transfer-on-death (TOD) deeds and other nonprobate designations. If the house passed to a named beneficiary outside probate, proceeds would not be part of the probate estate.
- Trust ownership: If the house was held in a living trust, the trustee follows the trust terms and the property is distributed according to the trust, not the will.
- Homestead protections and family allowances: Wisconsin law provides certain protections to a surviving spouse and minor children (for example, homestead or family allowance provisions). These rights can reduce what is available to other beneficiaries while protecting the surviving family.
- Secured debts and creditor claims: Mortgages and other liens on the home must be paid from sale proceeds before any distribution. Additionally, valid creditor claims against the estate have priority over beneficiaries’ inheritances.
What to check in a specific case
To know whether leftover money will follow the will in your parents’ situation, confirm these facts:
- How was the house titled at the moment of death? (Sole ownership, joint tenancy, TOD deed, trust.)
- Was probate opened and who is the named personal representative or administrator?
- Is there a valid will naming beneficiaries and an executor?
- Were there liens, a mortgage, or other debts attached to the property that must be paid from sale proceeds?
- Are there surviving spouses or minor children who may assert homestead or family allowance rights?
Practical outcome examples (hypothetical)
Example A — Sole ownership: Dad owned the house in his name alone, the executor sells the house, pays the mortgage and funeral and administration expenses. The remaining proceeds become part of Dad’s probate estate and are distributed according to his will.
Example B — Joint tenancy: Mom and Dad owned the house jointly with rights of survivorship. When Dad died, title passed automatically to Mom. Money from any later sale by Mom would belong to Mom alone, not to Dad’s probate estate.
Example C — Trust or TOD deed: The house passed outside probate to a named beneficiary. The probate estate does not include the house or its sale proceeds, so the will does not control those proceeds.
Timing and creditor issues
Even when the estate will ultimately pass under the will, distributions usually cannot happen until the representative confirms creditors and taxes are paid or the period for claims has passed. That protects the representative from later liability if an unpaid creditor later appears.
Where to look in Wisconsin law
Wisconsin’s rules on wills, probate, and estate administration are found in the state statutes and in materials published by the Wisconsin Courts. For a starting point, see the Wisconsin Courts’ public information on estate cases: https://www.wicourts.gov/services/public/estate/index.htm, and the Wisconsin Statutes main page: https://docs.legis.wisconsin.gov/statutes/. If you need the exact statute for a particular rule (for example, homestead or family allowance rules, or the formal probate process), those pages let you search the statutes by topic.
When to consult an attorney
If the title status is unclear, if someone claims a right to the property or proceeds, or if a surviving spouse or other heir asserts a statutory entitlement, talk with a Wisconsin probate attorney. A lawyer can review deed records, the will or trust documents, and the probate paperwork, and can advise whether the sale proceeds must pass through probate and how they should be distributed.
Disclaimer: This article provides general information about Wisconsin probate and estate concepts. It is not legal advice and does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Wisconsin attorney.
Helpful Hints
- Check the deed: look up the property deed at the county register of deeds to confirm ownership type (sole name, joint tenants, TOD deed, or trust ownership).
- Find the will and appointment documents: get a copy of the will and any court documents appointing the personal representative.
- Ask the executor for an accounting: the personal representative should provide a clear accounting showing sale proceeds, debts paid, and the proposed distribution.
- Confirm liens and mortgage payoff amounts before distribution.
- Ask whether the property passed outside probate (joint ownership, trust, or TOD deed). If so, the will likely does not control the proceeds.
- Be aware of surviving-spouse protections — these can affect distributions even if a will exists.
- If you expect a sizable residual distribution, consider hiring a probate attorney to protect your rights and confirm the distribution is correct under Wisconsin law.