Information on Probate Law Procedures in Wisconsin

Q:  What is Probate?

Probate is a court-supervised procedure for transferring ownership of one’s assets after the person dies.  If the deceased person leaves a Will, the property is distributed pursuant to the terms of the decedent’s Will.  If the decedent did not leave a Will and no other legal arrangements for the transfer of the decedent’s property have been made, the estate would still go through probate and the assets would then pass pursuant to the intestate laws in the State of Wisconsin.  The overall goal of Probate is to protect the rights of the heirs and other beneficiaries and to insure that the transfer of assets and payment of bills of the decedent are properly made.  The probate court can also become involved in claims of creditors and any conflicts between beneficiaries.

Q:  What is involved in the Probate process?

A: Generally, a Will names a personal representative who is responsible for administering the estate of the decedent.  A personal representative (also known as an executor) is usually a spouse, family member or friend.  If there is no Will or the Will does not designate a personal representative, then the court appoints a personal representative.  The personal representative’s main duties are to administer and manage the assets of the decedent during the probate process, determine the rights of the spouse and other beneficiaries, pay debts, claims, taxes and administrative expenses and to distribute the assets of the estate to the rightful heirs.

Q:  Should I hire an attorney to handle Probate?

A: It is the personal representative’s decision to hire an attorney.  A personal representative may desire to have an attorney assist in the complications of the probate process.  The personal representative need not hire the attorney who drafted the Will.  The personal representative is free to hire an attorney of his or her choice.  An attorney can provide valuable assistance to a personal representative in both a formal probate proceeding and an informal probate proceeding.  An attorney can streamline the probate process, the forms, the filing of the necessary tax returns and the distribution of the assets to the rightful heirs.

Q:  What assets can bypass Probate?

A: Probate is unnecessary if the property solely owned by the decedent totals less than $50,000.00 in value.  There is a special form known as a “Transfer by Affidavit” which can be utilized to transfer those solely held assets of the decedent that are less than $50,000.00 in value.  In addition, any property titled in joint ownership is exempt from probate, as it automatically passes to the surviving owner.  Any life insurance payments, IRA distributions, pensions, 401K or any other retirement plans can bypass Probate if the decedent has named a specific beneficiary other than his or her estate.  Any funds from these accounts would pass directly to the named beneficiary and do not need any court supervision.  Any other accounts that have a named beneficiary would also bypass Probate, as named beneficiaries control over a Will or any other form of distribution.  Also, typically the assets titled in the name of a trust are exempt from Probate and pass directly to the trust beneficiaries.

Q:  How much does Probate cost?

A: The cost of a Probate procedure can vary from estate to estate.  However, the basic costs include court costs, probate bond, personal representative fees and attorney fees.  Most of these expenses are paid out of the estate assets.  There is an inventory filing fee which is based upon the value of the estate’s assets.  Attorney fees are typically paid on an hourly basis.  The personal representative has the right to be reimbursed for any costs advanced by the personal representative in the payment of the estate expenses.  In addition, the personal representative is entitled to charge up to 2% of the gross inventory value of the estate.

Q:  How long does Probate take?

A:  The length of a Probate proceeding can vary from estate to estate.  The more complicated estates and the contested estates take longer.  Even for small and uncomplicated estates, the procedure might last up to six (6) months.  During the pendency of an estate, creditors are given approximately three (3) months to file claims against the estate.  The personal representative must file all outstanding income tax returns for the decedent as well as any income tax returns for any income earned by the estate after the decedent’s death.  If the estate is large enough, the personal representative may also have to file an estate tax return, which is a tax imposed on the value of assets in the estate.  After the appropriate tax returns are filed, the personal representative must first wait for a tax clearance letter from the Wisconsin Department of Revenue in order to close the estate.  Generally, state law requires that an estate be closed within eighteen (18) months.  If the personal representative needs a longer time, he or she must seek court approval to extend the time to close the estate.  Often times, personal representatives wait until the estate is closed to make a full and final distribution of all assets.  However, a personal representative can make partial distributions before the estate is fully closed once the creditors’ claim period has expired.