Wisconsin Probate Attorneys

Probate in Wisconsin: How does it work?

1. Probate Process Overview

   Probates are legal proceedings, in which the probate court oversees the process of a deceased person’s estate paying off its debts and distributing the remaining assets to the heirs. An estate is an intangible legal entity that is theoretically created whenever a person dies – it owns all of the deceased person’s property and automatically incurs and assumes all of the person’s debt, as a legal continuation of the person’s affairs. There are two types of probates in Wisconsin – formal and informal. Formal probates are usually overseen by a probate judge, with more hearings and judicial involvement. Formal probates are usually filed when an estate is facing a contentious legal situation – such as a creditors’ lawsuit for large amounts of debt, or family members and heirs of the deceased person disagreeing about aspects of the estate’s administration. Informal probates on the other hand are filed when an estate is being administered under normal, legally peaceful circumstances. They are typically overseen by a court commissioner or “register in probate,” rather than a true circuit court judge. Informal probates may still deal with debts of the decedent – albeit under less formal processes – but they usually don’t involve any fighting between the heirs, such as a challenge to the validity of the deceased person’s Will. Informal probates also have far less hearings and forced timelines than formal probates, because the court is generally less involved with the process.

2. Filing Required Documents

   The probate process begins by filing various required documents, such as an Application for Probate, Proof of Heirship, Consent to Serve as personal representative or executor, and a Waiver and Consent. All of the deceased person’s heirs must sign the Waiver and Consent, which states that the people signing it agree on whether or not the decedent left a Will and consent to the appointment of a particular named executor. If any heir refuses to sign the Waiver, this implies a technical challenge to the inheritance process and Will, if any, which usually triggers the court to hold a hearing to investigate the dispute (and possibly transform the case into a formal probate). If an heir cannot be located to sign the Waiver and Consent, then the court will usually order that a special notice be published in the newspaper in an attempt to alert the person, as well as appoint a Guardian Ad Litem attorney to try to contact the lost heir and represent his or her interests. Thus the process of contacting all legal heirs to sign the Waiver and Consent is a pivotal and sometimes uncomfortable part of the informal probate process (especially if any of them were disinherited in the decedent’s Will). Many clients use Trusts and other estate planning tools to avoid this exact issue of having to contact all heirs after a death when starting a probate.

3. Issuance of Important Documents

   The probate court will also issue some important documents at the beginning, such as the Notice to Creditors and Domiciliary Letters. The Notice to Creditors must be published in the local newspaper for three weeks in a row as a class 3 legal publication. The Notice itself gives potential creditors of the decedent three-and-a-half months to file a claim against the estate with the probate court. If a creditor files their claim on time and shows up to any creditors’ hearings, the debt will likely have to be repaid in order for the probate to ultimately close. If creditors fail to file on time or fail to show up to hearings, there is a decent chance their claims will be dismissed by the court. While probate could close in as fast as about four months once the creditors period is over, the vast majority of probates take at least nine months to a year or more to close, especially if there are complicated issues such as delays in selling the decedent’s real estate or collecting property, in-fighting between heirs, unpaid tax problems, or difficult creditors with large amounts of debts to settle.

4. Domiciliary Letters and Their Role

   The Domiciliary Letters are a document from the probate court that states the name and address of the personal representative or executor of the estate, along with the court’s approval and empowerment of the named person to act on behalf of the estate. These powers generally include the ability to collect and liquidate the decedent’s property, pay off, contest or settle the decedent’s debts, and distribute the balance according to the deceased person’s Will or otherwise to his or her heirs. Domiciliary Letters are court-approved proof of legitimacy to third parties so that they will cooperate with transferring property into the executor’s control and release important information to the executor. Third parties will often outright refuse to release information or assist in transferring a deceased person’s money and property until they are provided with Domiciliary Letters from the probate court.

5. Filing the Inventory Document

   During the middle of the probate timeline, the personal representative will file the Inventory document, which lists all of the estate’s property and corresponding values. The estate must pay a 0.02% fee based on the value of the assets reported to the court. Consulting an attorney to help draft the Inventory is important, as identifying which assets actually need to be reported is a crucial step. Not all assets must be reported in probate, such as assets that were jointly owned as survivorship property with another living person or had designated transfer-on-death beneficiaries set up when the decedent was alive. For example, a life insurance policy that has a named payable on-death beneficiary usually does not need to be reported on the Inventory in probate. However, a life insurance policy with no such post-death beneficiary named on it will likely have to be reported in probate. A practical rule of thumb for whether or not an asset is reportable for probate purposes is to consider whether the third party who transferred an asset to the estate’s control required the personal representative to provide a copy of the Domiciliary Letters. If the personal representative was asked to show the Domiciliary Letters, or if the check transferring the money was made out to the estate’s name, then it is very likely the asset must be reported on the Inventory and included as a probate asset.

6. Seeking Estate Receipts

   The personal representative must seek written estate receipts from creditors of the estate for all claims and debts that the estate pays off (unless such debt was formally dismissed by the probate court). Once the personal representative has paid off and settled all of the debts, it is time to transfer the balance of the estate’s property and assets to the decedent’s heirs. If the decedent left a Will, which has been accepted and approved by the probate court, then the property must be distributed according to the Will’s specific instructions. Each heir or beneficiary who receives property or money from the estate must also sign an estate receipt, just like creditors.

7. Filing Final Documents

   At the end of the probate, the personal representative must file a few more documents to close the estate, including the Final Account. The Estate’s Final Account lists and describes where the estate’s assets and money went, whether it was applied towards paying the estate’s administrative costs, or distributed to heirs. Estate accounts can be intimidating to complete and it is often hard to balance the numbers if you are inexperienced with probate accounting. Organized personal representatives who track and write down all of their costs and expenditures during the probate make it easier to fill out an accurate estate account. Like all legal documents filed with a court, you should never lie or be untruthful when crunching the numbers on a final account. All interested parties in the estate also have a right to review the final account for accuracy and transparency.

8. Closing the Probate

   Once the personal representative has filed all of the required final documents, the court will close the probate on its records. Keep in mind that this article described the general process for informal probates. Formal probates can have more nuanced requirements and documents such as special Motions or Petitions, as they are similar to civil lawsuits, unlike the more peaceful informal probates. But even informal probates can be intimidating and confusing to the untrained person. It is strongly recommended that you consult a lawyer to guide you through the probate process, as there are situational tips and tricks to complete probates effectively that you will probably miss on your own.