The United States is in the middle of the largest intergenerational transfer of wealth in history. Some refer to it as the “Great Transfer.” Attorneys who enjoy a good turn of phrase may prefer the more evocative and alliterative title, the “Silver Tsunami.” Whatever you call it, this cresting wave of wealth transfers brings significant changes to the practice of law in Wisconsin and across the country. That impact is acutely felt in trusts and estates practice and in the uptick in probate, trust, and fiduciary litigation. In this article, we explain the phenomenon and its causes, identify key practice effects on Wisconsin lawyers and judges, and suggest practical steps to weather this continuing and growing storm.

Storm Warning: Rising Levels of Death and Discord

The population of the United States is aging. The U.S. Census projects that by 2034, adults over 65 will outnumber children under 18 for the first time in this country’s history.^[1] By 2040, 22% of the country’s population will be over 65, a 27% increase from their population share in 2022.^[2] Baby Boomers (people born between 1946 and 1964) and the older Silent Generation together hold more than 60% of the accumulated net wealth in the United States.^[3] One study suggests that the total amount of “bequeathable wealth” that Americans can pass down to their beneficiaries increased from 256% of the country’s gross domestic product (GDP) (in 1997) to 424% (in 2021).^[4] Some 97% of that increase in wealth has been attributed to households in which the head of the house was then age 55 or older.^[5]

With all this wealth concentrated among a large and aging population, an estimated $124 trillion will pass upon death between now and 2048.^[6] Millennials will stand to benefit the most, inheriting some $46 trillion.^[7]

As the older generations pass and leave their accumulated wealth to a more concentrated group of beneficiaries, it’s no surprise that contested probate proceedings and trust litigation have risen significantly. The National Center for State Courts estimates that between 2020 and 2024, probate and estate case filings increased by almost 32% across the states it surveyed.^[8] In Florida, a state well known for its sizeable older-adult population, the court system reported that probate cases increased from 57,997 in fiscal year 2019–20 to 71,282 in 2023–24.^[9] In California, the most populous state in the country, probate cases have risen from 32,278 filings and 17,860 dispositions in 2016 to 41,985 filings and 35,656 dispositions in 2025.^[10] In Wisconsin, the number of probate cases rose from 14,262 in 2020 to 15,475 in 2025 (including trust, but excluding adoption, commitment, and guardianship filings).^[11] Anecdotal evidence from probate attorneys, trust litigators, and court officials suggests that these numbers understate the dramatic increase in both the number of cases and the contentiousness of these disputes.

While shifting demographics and increased wealth among older generations contribute to this surge in estate, trust, and fiduciary litigation, other trends are converging to create a perfect storm.

One is the rise in divorce among the older generations. While the overall divorce rate has remained relatively constant over the last several years, the rate for Americans over the age of 50 doubled between 1990 and 2010. As of 2022, 36% of adults who get divorced are over 50.^[12] There are more divorces among adults over 65 than ever before, with the divorce rate nearly tripling since 1990.^[13] Whereas years ago one could expect some level of cooperation between the surviving spouse and their children regarding the administration of the deceased spouse’s estate, as more Americans divorce later in life and often remarry, there are more estate disputes between adult children from a first marriage and the decedent’s second or subsequent spouses.

A second trend is the substantial increase in diagnoses of Alzheimer’s disease and other forms of dementia. In 2026, an estimated 7.4 million Americans age 65 and older are living with Alzheimer’s. By 2050, this number is projected to rise to nearly 13 million.^[14] This is because the rate of Americans being diagnosed with dementia is projected to nearly double between 2020 and 2060, from approximately 514,000 new diagnoses annually to 1 million.^[15] As the diagnosis of these diseases increases, the actual (and perceived) capacity to execute wills and trusts decreases, and vulnerability to undue influence increases, making older adults more vulnerable to bad-faith actors. Accordingly, practitioners can expect more challenges to estate plans arising from actual or suspected capacity issues, undue influence, or both.

The silver tsunami, coupled with these and other societal issues, creates a perfect storm for a dramatic shift in the trusts and estates practice. There is more money for disgruntled beneficiaries to fight over. More blended families mean there are more people to fight with. And more people with dementia means there is more reason (real or imagined) to doubt that the decedent’s (often complex) estate planning reflects their true intentions.

The Forecast: Significant Impacts for Wisconsin Attorneys

The Great Transfer is driving material changes in legal practice for litigators, judges, and estate planners. With increased demand for services, Wisconsin attorneys have responded by developing and marketing specialty practices in trust, estate, and fiduciary litigation. Moreover, Wisconsin law’s vesting probate and trust jurisdiction in specific judicial divisions has significant implications for Wisconsin judges, particularly in larger counties. Finally, estate planning attorneys must consider a growing undercurrent of professional risk for themselves in this increasingly litigious environment.

More Specialized Trust Litigation Creates More Specialized Trust Litigators. Probate has long been a niche practice in Wisconsin, and the procedures for litigating claims and will contests are exhaustively laid out in some 30 chapters of the Wisconsin Probate Code.^[16] However, Wisconsin adopted the Uniform Trust Code, effective July 1, 2014, making the courts much more accessible for resolving trust disputes.

While trust litigation is litigation in every sense, it is significantly different from traditional civil litigation. First, because the Trust Code vests trust jurisdiction in the probate courts, the remedies differ from those in civil litigation. While damages may be available, most Trust Code remedies are equitable – including trustee removal, accountings, and trust modification or reformation, among others.^[17] These same equitable roots mean that trust disputes are almost always heard by judges at bench trials rather than by juries. Significant procedural differences exist, for example, in trust actions initiated by verified petition and notice rather than by complaint with personal service. Finally, attorney-fee shifting is available at a judge’s discretion, unlike the “American Rule” in civil litigation.^[18] Fee issues are litigated early and often in trust cases.

As volume and complexity have increased, the legal market has responded. To meet growing demand, law firms of all sizes and across geographic regions are making substantial investments to expand their estate planning practices, including hiring litigators dedicated to these disputes.^[19] An increasing number of firms are marketing their trusts and estates litigation practice groups, and individual attorneys are positioning themselves as estate, trust, or fiduciary litigators. Although litigation historically accounted for only a small percentage of trusts and estates revenue, that share is growing significantly as these disputes become more commonplace.^[20] If trends continue, litigation will likely account for an increasingly large share of trusts and estates practices.

Wisconsin’s Judiciary: In Uncharted Waters. The tsunami places greater burdens on Wisconsin’s probate judges, who face a heavier volume of complex cases brought by increasingly specialized advocates. Yet before taking the bench, most Wisconsin jurists did not practice in trusts and estates, let alone in probate or trust litigation.

Some states use dedicated probate divisions or judges.^[21] The Wisconsin Trust Code vests exclusive subject-matter jurisdiction in the county circuit court assigned to exercise probate jurisdiction.^[22] Whether Wisconsin counties diffuse that jurisdiction among multiple branches and assign probate and trust cases at random or concentrate it in designated probate branches, judges have limited time and resources to develop sustained judicial experience in a growing and complex area of the law. Counties that randomly assign cases necessarily spread them out, limiting experiential opportunities to build familiarity with a narrow legal area. Counties with designated probate courts must still comply with the mandatory rotation requirements set forth in Wisconsin Supreme Court Rule 70.23(3).^[23] Judges in those counties frequently spend a year or two in estate and trust litigation in the probate division, only to be transferred to a civil or criminal docket – often never to return with their accumulated experience.

While Wisconsin judges approach their rotations with professionalism and skill, both the random assignment and rotation systems necessarily limit opportunities to develop subject-matter familiarity and to establish consistent local practices and procedures. Adjudicating these cases, therefore, takes more time and effort from the judges as they traverse unfamiliar law. The rising frequency of these cases, their all-too-frequent contentiousness, and unfamiliar subject matter combine to create a growing burden on the judiciary.

Estate Planners: Opportunity and Risk. Demographic trends present a double-edged sword for estate planning lawyers. On the one hand, legal industry experts and headhunters predict significant demand for estate planning and growth in this practice area within firms, as noted above. On the other hand, attorneys must consider the associated malpractice risk posed by these developments. Estate planning practice has long been a complex, tax-regime-dependent alphabet soup of GRATs, SLATs, CLTs, SNTs, QTIPS, and ILITs, to name a few. As estate plans have grown more sophisticated, the volume of disputes has increased, and as the amounts at stake have grown larger, so too has the likelihood that a disgruntled surviving spouse, beneficiary, or grantor-client will seek someone to sue.

That someone is often the lawyer. According to the most recent malpractice statistics from the American Bar Association’s (ABA) Standing Committee on Lawyers’ Professional Liability, since 2020, claims in the estate, trust, and probate realm have accounted for the highest percentage of all malpractice claims, representing nearly 14% of all reported claims.^[24]

Wisconsin outpaces the national trend. According to Wisconsin Lawyers Mutual Insurance Co. (WILMIC), estate planning was the most claim-prone practice in 2025, with estate, trust, and probate claims accounting for nearly 18% of all claims filed.^[25] Many of these disputes arise years, sometimes decades, after the initial documents were drafted. That means estate planning attorneys are increasingly being drawn into litigation not only as targets of malpractice claims but also as witnesses at depositions and trials, when the attorney-client privilege might not apply.^[26] In short, the same family dysfunction that drives revised estate plans and trust litigation will likely continue to fuel an increase in malpractice claims.

Noting that estate planning’s share of total malpractice claims doubled from 1985 to 2023, the ABA surmised that its 2023 study likely “captured a surge, not the crest” of the Baby Boomers’ wave of wealth transfer.^[27]

As the older generations pass and leave their accumulated wealth to a more concentrated group of beneficiaries … contested probate proceedings and trust litigation have risen significantly.

Sandbags and Waders: Proposals to Help Weather the Storm During the Next 25 Years

How is Wisconsin positioned to weather this storm over the next 25 years? The state’s adoption of the Uniform Trust Code was a crucial step in building necessary infrastructure. Having taken effect shortly after the first Boomers turned 65, the Wisconsin Trust Code has provided clear default rules, eliminated cumbersome automatic court supervision of trusts, and enhanced flexibility in trust administration and modification. However, beyond the uniformity and modernization of the Trust Code, Wisconsin courts, attorneys, and the Wisconsin Legislature should consider more in response to the cresting wave of estate, trust, and fiduciary litigation.

Litigation-Focused Trust Code Amendments and Local Rules. The 2024 amendment to the Wisconsin Trust Code introduced several important substantive changes and clarifications. However, trust litigators have identified many areas of procedural uncertainty. With Trust Code jurisdiction vested in a county’s probate division and subject to probate procedures under Wis. Stat. chapter 879, trust litigation is initiated by a verified petition rather than by summons and complaint, with notice rather than personal service, and with no responsive pleading or mandatory objection procedure. There are few express discovery procedures in Wis. Stat. chapter 879. Accordingly, most courts implicitly incorporate Wis. Stat. chapter 804’s discovery procedures.

The result is a lack of uniformity from county to county. Without a consistent procedure, the first hearing on a trust petition can be treated as a hearing on the merits in one county but as a status or scheduling conference in the county next door. As trust litigation becomes more frequent and more contentious, the lack of uniformity and procedural predictability will burden litigants, their counsel, and the courts. Practitioners and policymakers should be encouraged to propose amendments to the Wisconsin Trust Code and to advocate for their efficient legislative adoption. Courts would also benefit from incorporating trust-specific procedures into their local probate rules. As attorneys and court personnel increasingly recognize, trust petitions are often full-blown litigation and should be treated as such.

A Code in Need of Construction. Wisconsin attorneys have an updated, modern trust code, but almost no state case law interpreting it. In the 12 years since the Wisconsin Trust Code took effect, 40 appellate opinions have referred to the Code. However, 36 of those cases are unreported, including 20 unreported per curiam decisions that cannot be cited under Wis. Stat. section 809.23(3)(b).^[28]

As a result, trust and fiduciary litigators often lack Wisconsin case law to present to Wisconsin trial courts. Attorneys and trial court judges must rely almost entirely on case law from other states that have adopted the Uniform Trust Code, the Code’s official comments, and secondary sources such as the Restatements of Trust. Exacerbating the lack of state case law are the Wisconsin Trust Code’s many unique provisions that deviate from the Uniform Code. Accordingly, there is scant citable guidance on these Wisconsin-specific provisions. As trusts and estates litigation continues to rise, litigators and lower courts need published (or at least non-per curiam) case law to guide them in this specialized field.

Public Enforcement Focus. As people age, many experience cognitive decline and become more vulnerable to financial abuse, including abuse by family members. In the most egregious cases, facts giving rise to undue influence and breach of trust or fiduciary duty may also constitute theft, fraud, identity theft, or elder abuse under Wisconsin’s criminal statutes. However, state prosecutors are often unfamiliar with the legal complexities of trusts and estates, gifting, and marital property. Training and resources at the state and local levels would assist local law enforcement agencies in fulfilling their duty to protect vulnerable Wisconsin residents and to ensure that their families and other intended beneficiaries are not unlawfully deprived of generational wealth by bad actors.

Relatedly, Baby Boomers are expected to leave more than $18 trillion in bequests to charitable interests.^[29] The Wisconsin Attorney General plays a pivotal role in protecting charitable trusts, endowed gifts, and donor intent. The Wisconsin Trust Code codifies the attorney general’s longstanding common-law role as a primary bulwark for protecting and enforcing charitable trusts.^[30] When a deceased settlor fails to name a designee or a specific charitable beneficiary, the Wisconsin Department of Justice is often the only party with standing to enforce a trustee’s compliance with a charitable trust’s terms. Indeed, Wisconsin’s adopted version of the Uniform Prudent Investment of Institutional Funds Act (UPMIFA) does not provide for donor or special-interest standing.^[31] As a result, only the attorney general has standing to enforce proper management of endowed gifts and donors’ restrictions on their use. In the decades ahead, the attorney general should prioritize and fully embrace the office’s statutory roles. If not, drafting attorneys must, on their own, devise and implement mechanisms in charitable trusts and endowed gift instruments to permit others to enforce their donor clients’ intent.

Pro Bono and Small Estate Resources. Approximately 10% of people age 65 or older live below the federal poverty line, and an estimated 60% of Baby Boomers have accumulated a net worth of less than $185,000.^[32] People with these small but often vital assets rarely have the benefit of prior estate planning. As a result, disadvantaged heirs and intended beneficiaries struggle to effectuate their loved ones’ intent. Gifts that could be a leg up for the next generation are frequently not fully realized, if realized at all.

Accordingly, there is a substantial need for low-cost and pro bono legal services in probate and in the related and increasingly recognized field of “heirs’ property.”^[33] In 2025, the Marquette Volunteer Legal Clinic established its Probate and Inheritance Clinic to address the growing demand for assistance with postmortem transfers of title in real estate and other intestate estate property. Intestate heirs frequently lack clear titles and face insecure ownership. The growing flood of unrepresented intestate heirs attempting to secure property burdens the courts and county registers in probate on the front lines.

Beyond a call for more resources and volunteerism from practitioners and the broader legal community to address these issues, legislative solutions may also exist. For example, 26 states have adopted the Uniform Partition of Heirs Property Act, which advocates argue is designed to streamline and protect intestate heirs’ ownership of inherited property and the associated due process protections.^[34] Without some remedy, the Great Transfer stands to have a disproportionately negative effect on lower-income people who have fewer resources to engage in even the most basic estate planning.

Conclusion

The storm surge is no longer on a distant horizon. It is actively reshaping Wisconsin’s legal landscape. This unprecedented transfer of wealth presents both immense opportunity and structural strain for courts and attorneys. With the rising tide of probate and trust litigation, the days of passive estate planning and administration are gone.

Instead, lawyers – planners and litigators alike – must adopt proactive strategies to navigate the aging population’s legal needs and protect older adults’ true intentions. Capacity assessments and comprehensive file documentation, for instance, can help prevent undue influence. Meanwhile, early mediation with qualified mediators can protect estates and trusts from unnecessary depletion by disputes. Judges must prepare for increasingly crowded and emotionally charged dockets, all while bearing in mind that effectuating grantor and testator intent is the law’s ultimate goal. By anticipating these friction points and fortifying estate plans against inevitable family discord, Wisconsin legal professionals can protect and enforce their clients’ legacies amid these turbulent waters.

Endnotes

[1] An Aging Nation: Projected Number of Children and Older Adults, U.S. Census Bureau (Mar. 13, 2018), https://www.census.gov/library/visualizations/2018/comm/historic-first.html. ^

[2] 2023 Profile of Older Americans, Administration for Community Living (May 2024), https://acl.gov/sites/default/files/Profile%20of%20OA/ACL_ProfileOlderAmericans2023_508.pdf. ^

[3] Marcus Liu, Visualizing $156 Trillion in U.S. Assets, by Generation (Aug. 17, 2023), https://www.visualcapitalist.com/us-wealth-by-generation/; 2021 Generational Power Index, Visual Capitalist (May 2021), generational-power-index-2021-1.pdf.

Boomers show no sign of slowing down their accumulation of wealth any time soon. In the last three months of 2025, they gained over a trillion dollars in wealth (more than any other age group), raising their cumulative wealth to $89.7 trillion. A $110 Trillion Transfer of Wealth Will Take Time, Wall S. J. (May 4, 2026), https://www.wsj.com/articles/the-great-110-trillion-wealth-transfer-wont-happen-any-time-soon-e8b2ef31?msockid=2775ca18772a6e5b2ec8dfa376fa6f0b. ^

[4] A $110 Trillion Transfer of Wealth Will Take Time, Wall St. J. (May 4, 2026), https://www.wsj.com/articles/the-great-110-trillion-wealth-transfer-wont-happen-any-time-soon-e8b2ef31?msockid=2775ca18772a6e5b2ec8dfa376fa6f0b.

This relative increase is made more pronounced by the fact that GDP nearly tripled from $8.58 trillion to $23.32 trillion during the same period. GDL (current US$), World Bank Group (last visited May 22, 2026), https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?end=1997&most_recent_value_desc=true&start=1997&view=map&year=2021. ^

[5] A $110 Trillion Transfer of Wealth Will Take Time, Wall St. J. (May 4, 2026), https://www.wsj.com/articles/the-great-110-trillion-wealth-transfer-wont-happen-any-time-soon-e8b2ef31?msockid=2775ca18772a6e5b2ec8dfa376fa6f0b. ^

[6] Cerulli Anticipates $124 Trillion in Wealth Will Transfer Through 2048, Cerulli (Dec. 5, 2024), https://www.cerulli.com/press-releases/cerulli-anticipates-124-trillion-in-wealth-will-transfer-through-2048. ^

[7] Id. ^

[8] Gibson et al., Caseload Detail, Court Statistics Project, National Center for State Courts (last visited May 26, 2026), https://www.ncsctableauserver.org/t/Research/views/TrialDashboards/Civil?%3Aembed=y&%3AisGuestRedirectFromVizportal=y&%3Aorigin=card_share_link. ^

[9] Statewide Probate and Guardianship Filings, OSCA (last visited May 22, 2026), https://flcourts-media.flcourts.gov/content/download/2483744/file/4.%20D.%20Data%20Compilation%20-%20v2%20-%20Accessible.pdf. ^

[10] Court Operational Metrics, California Courts Judicial Branch of California (last updated Jan. 2025), https://courts.ca.gov/news-reference/research-data/court-statistics/court-operational-metrics#statewide-case-trends. ^

[11] Circuit Court Caseload Statistics, Wisconsin Court System (last visited May 22, 2026), https://www.wicourts.gov/publications/statistics/circuit/historicalcircuitstats.htm. ^

[12] Susan Brown, The Graying of Divorce: A Half Century of Change, J. Gerontol B Psychol Sci Soc Sci, 77(9), 1710-1720 (2022), available at National Library of Medicine, https://pmc.ncbi.nlm.nih.gov/articles/PMC9434459/; see also Baby Boomer Divorce is Booming (Jun. 30, 2026), https://www.businessinsider.com/baby-boomer-divorce-boom-reshaping-retirement-savings-inheritance-millennials-2026-6? ^

[13] Donna Levalley, The New Average Divorce Rate By Age: Are You in the Risk Zone, (Jan. 28, 2026), https://www.kiplinger.com/retirement/happy-retirement/average-divorce-rate-by-age-are-you-in-the-risk-zone. ^

[14] 2026 Alzheimer’s Disease Facts and Figures, Alz.org, https://www.alz.org/getmedia/ef8f48f9-ad36-48ea-87f9-b74034635c1e/alzheimers-facts-and-figures.pdf. ^

[15] Lifetime risk and projected burden of dementia, Nature Medicine, 31, 772-776 (2025), https://www.nature.com/articles/s41591-024-03340-9. ^

[16] See Wis. Stat. chs. 851-882. ^

[17] See Wis. Stat. § 701.1001(2); see also Wis. Stat. § 701.0410-.0417. ^

[18] See Wis. Stat. § 701.1004. ^

[19] Harrison Barnes, The Trusts and Estates Law Boom: A Comprehensive Analysis of Market Trends, Career Opportunities, and Regional Variations (2025), https://www.bcgsearch.com/article/900056154/The-Trusts-and-Estates-Law-Boom-A-Comprehensive-Analysis-of-Market-Trends-Career-Opportunities-and-Regional-Variations/. ^

[20] Id. ^

[21] South Carolina, for example, assigns a probate judge to each county who serves a four-year term in that role and has exclusive jurisdiction over estates and trusts. South Carolina Judicial Branch, Probate Court, https://www.sccourts.org/courts/trial-courts/probate-court/. ^

[22] Wis. Stat. § 701.0203(1). ^

[23] Wis. SCR 70.23(3). ^

[24] Noah D. Fiedler et al., Profile of Legal Malpractice Claims 2020-2023 (Rev. ed. 2024). ^

[25] Matthew M. Beier, Rising Claims, Shifting Risk – A 2025 Malpractice Snapshot for Wisconsin Lawyers, 99 Wis. Law. 45-47 (Feb. 2026). ^

[26] Wis. Stat. § 905.03(4)(b). ^

[27] Fiedler et al., supra note 24, at 35. ^

[28] Contrast Wisconsin with Florida. Florida’s adoption of the Uniform Trust Code went into effect in 2007. Since then, there have been 97 reported decisions referencing the Florida Trust Code and only three unreported decisions. ^

[29] Cerulli Anticipates $124 Trillion in Wealth Will Transfer Through 2048, Cerulli (Dec. 5, 2024), https://www.cerulli.com/press-releases/cerulli-anticipates-124-trillion-in-wealth-will-transfer-through-2048. ^

[30] See Wis. Stat. §§ 701.0405(3), 701.0413(4). ^

[31] See Wis. Stat. § 112.11. ^

[32] U.S. Economic Insight, Visa Business and Economic Insights, (Nov. 2024), https://usa.visa.com/content/dam/VCOM/regional/na/us/partner-with-us/economic-insights/documents/vbei-special-research-retirement-time-in-america.pdf; https://www.kff.org/medicare/how-many-older-adults-live-in-poverty/. ^

[33] Thomas W. Mitchell, The Heirs Property Field: Moving from Shadows to the Light to Enlightened, Evidence-Based Solutions, Agric. & Res. Econ. Rev, 1-13 (2026), https://lira.bc.edu/works/publication-article/r6r82-r0g57. According to Professor Mitchell, “‘heirs’ property’ generally refers to land, homes, and other forms of real property that are transmitted intergenerationally to at least two people, usually without a will, trust, or some other type of estate plan. If a property owner dies without an estate plan in the United States, his or her property may be transferred to the people who qualify as heirs under state laws of intestate succession, laws that operate as will substitutes. If there are two or more heirs in such circumstances, the heirs will take ownership of the property under the default rules governing tenancy-in-common ownership, a very unstable and problematic common real property ownership legal regime.” ^

[34] 4. Uniform Partition of Heirs Property Act.pdf. ^