Understanding the Probate Process 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. 

Probate Overview in Wisconsin

When a person passes away, their assets must be distributed according to their estate plan. For estate administration purposes, assets are categorized as either probate or non-probate. Prestige Law Office ("the firm") assists executors of wills and heirs/beneficiaries through the probate process—from identifying estate assets to distributing inheritances. If a person with assets exceeding $50,000 passes away without a will, their assets are distributed according to Wisconsin's intestacy laws.

• Types of Probate in Wisconsin

  • Informal Probate
    • Most probate proceedings are informal and handled without judicial oversight. Informal probate is generally used when there are no disputes among beneficiaries or creditors. These cases are initiated through a court application and are often resolved with summary judgment. The county's Registrar in Probate oversees the informal estate administration process. 
  • Formal Probate
    • Formal probate is required when disputes arise, such as contested wills, disagreements among beneficiaries, or unresolved creditor claims. If complications occur during informal proceedings, the case transitions to formal administration. Formal probate involves judicial oversight, the assistance of an estate administration attorney, and the appointment of a personal representative to manage the estate.

The probate process and its outcomes can vary significantly depending on whether the decedent had a valid will at the time of their 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:

1. Notify the heirs;
2. Publish notice for any creditors;
3. Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
4. 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.

• 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.

• 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 document must be located, filed with the court, and authenticated before its terms can be executed. This process typically involves a court hearing attended by individuals named in the will and those who would have inherited under intestacy laws if the will did not exist. During this hearing, interested parties may contest the validity of the will.

If the will is uncontested, the executor must first settle all of the estate's debts. Once creditors are paid, the remaining assets are distributed to the beneficiaries as outlined in the will.

In cases where the will is contested, an additional hearing may be scheduled. The burden of proving the will's invalidity falls on the challenger. Common grounds for challenges include allegations of undue influence, fraud, or misrepresentation, as well as claims that a more recent will exists, rendering the submitted will invalid.

If the court determines that the will is valid, the executor can proceed with paying debts, settling taxes, and distributing assets. Conversely, if the court rules the will invalid, the estate will be administered under the state's intestacy laws. If the court deems another will valid, the executor will follow the terms of the valid will instead.

Probate without a Will

If there is no will, the decedent is considered to have died intestate. This does not mean the decedent's assets will not be inherited; rather, it means the assets will be distributed to the heirs according to the state's intestacy laws.

After the executor locates all the decedent's assets, notifies the creditors, and pays outstanding debts, the probate judge applies the state's intestacy laws to distribute the remaining 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 Today

If you are an estate executor or an heir/beneficiary, Prestige Law Office can guide you through the probate process. Contact the firm today to schedule a consultation and take the first step toward securing your future.