When a person passes away, their assets must be disbursed according to their estate plan, and the person's assets are categorized as probate and/or non-probate for estate administration purposes. Prestige Law Office, LLC, ("the firm") can help executors of Wills or heirs/beneficiaries of an estate through the probate process, starting with identifying estate assets and ending with the distribution of assets and inheritances to the heirs/beneficiaries. Contact the firm at 414-459-1632 to schedule a consultation and take the first step in securing your future.
Overview of Probate in Wisconsin
Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. Additionally, probate is required in Wisconsin for any estate, without a trust, that exceeds $50,000. Probate is overseen by the local probate court.
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Informal Probate
- Generally, most probate proceedings in Wisconsin are civil and managed without a judge. These informal probate cases have no disputes between beneficiaries and creditors. Informal proceedings are often handled with an application to the court, followed by summary judgment. For informal probate proceedings, the county's Registrar in probate will supervise the informal estate administration.
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Formal Probate
- A probate judge is required to preside over formal administration. Formal administration is used if the will is contested among beneficiaries, or if there are creditor issues. Additionally, if issues arise during informal proceedings, the case switches to formal administration. Formal probate requires the assistance of an estate administration attorney and a personal representative to be appointed.
Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.
The Early Stages of Probate
The probate process begins when the decedent passes away. A petition is filed with the probate court. The next step is to identify the executor or personal representative of the decedent's estate.
- If there is a Will, an executor will likely be named in it.
- If there is not a Will, a probate judge will nominate one.
Once the executor is approved or appointed by the court, the executor must:
- Notify the heirs;
- Publish notice for any creditors;
- Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
- Secure all assets.
Probate vs. Non-Probate Assets
When a person passes away, the person's assets are generally categorized as probate and/or non-probate for estate administration.
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Probate Assets
- Probate assets are assets that the decedent owned in his/her name alone without a beneficiary designation. Examples of probate assets are a home that is in the decedent's name only or a bank account in the decedent's name alone without an “in trust for” or “payable on death” (POD) designation associated with the account.
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Non-Probate Assets
- Conversely, non-probate assets include the following: a joint bank account; an investment account with a beneficiary designation; or a home owned by husband and wife or by two or more individuals as “joint tenants with rights of survivorship.”
Additionally, how probate proceeds depends primarily on whether there is a Will or not.
Probate with a Will
If the decedent died with a Will, the Will must be found, filed with the court, and authenticated before its terms are put into action. This process often involves a court hearing where parties named in the Will and parties not named who otherwise would have inherited but for the Will are in attendance. During this hearing, an interested party may contest the Will.
If there are no challenges to the Will, the executor must first pay off all the estate's debts. Once creditors are paid, the executor distributes the remainder to the beneficiaries in accordance with the Will.
If the Will is challenged, then another hearing may be set. The challenger has the burden to prove the Will's invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to the probate court.
If the court decides the Will is valid, the executor can pay debts, bills, and applicable taxes, and distribute assets. If the court decides the Will is invalid, it will apply the state's intestacy laws. On the other hand, if the court determines the other Will is valid, it will allow the executor to apply the valid Will (as opposed to the invalid Will).
Probate without a Will
If there is no Will, the decedent is said to have died intestate. This does not mean the decedent's assets will not be inherited; rather, it means the decedent's assets will pass to the heirs through Wisconsin's intestacy laws.
Once the executor has located all the decedent's assets and notified and paid the creditors, the probate judge will apply Wisconsin's laws of intestacy and distribute the estate to the decedent's heirs.
The End Stage of Probate
Once debt and bills are paid and the remaining assets are distributed, the executor will submit receipts and records of everything to the court. At that time, the executor will ask the court to close the estate and release the individual from the role of executor.
Contact Prestige Law Office, LLC, Today
If you are an estate's executor or heir/beneficiary, the firm can guide you through the probate process. If you have questions, schedule a consultation and take the first step in securing your future.