Can an estate be divided by children and living spouse through probate if there was no will?

Question

My mother passed away and my father is mentally disabled (he does not have a guardian, us kids have been taking care of him). The only asset she had was the house. The house is in both of their names. I am wondering if it is possible to for the estate to be divided up by us three kids and my father so we all get a portion. Is this possible through probate or will it just be awarded to my father?

Nina Whitehurst · Answer

It does depend on how the deed is worded but if a probate is required and her children are all your dad's children too, then your dad will get your mother's entire estate.  Then when your dad dies, if he too has no will, the children will inherit everything in equal shares.

Thomas B. Burton · Answer

I agree with Attorney Whitehurst you should first examine how title is held on the deed. If it is held as husband and wife as marital property, then your Father would inherit the home entirely without probate upon your Mother's death. If your Mother passed away without a Will, her estate will be divided according to the laws of intestate succession. If her only children are the children she had with your father, then the estate would go first to your Father, and then to the children. Here is a helpful article that lays out several common scenarios to show you what happens 
 
https://www.nolo.com/legal-encyclopedia/intestate-succession-wisconsin.html 
 
You can also reference the statutes themselves here https://docs.legis.wisconsin.gov/statutes/statutes/852/01/1  
 
If your father is mentally disabled, maybe you need to consider a guardianship action in order to have someone to manage the funds on his behalf. I would consult with a local probate attorney about your best options in this situation.

Q: Can an estate be divided by children and living spouse through probate if there was no will?