Wisconsin Probate Basics

Probate is the legal process through which a deceased person’s assets, that are not otherwise distributed by operation of law, are distributed, and their debts are settled. In Wisconsin, like in other states, the probate process ensures that the wishes of the deceased are respected, while also providing a legal mechanism for creditors to claim what they are owed. It involves a Court-supervised procedure that can vary in complexity based on the size and nature of the deceased person’s assets.

What Happens During Probate?

Probate involves several steps, including the identification and valuation of the deceased person’s property subject to probate, the payment of debts and taxes, and the distribution of the remaining probate assets to the beneficiaries. The process begins once the Probate Court recognizes the deceased person’s Last Will (if one exists) and appoints a personal representative to manage the estate. Once this process is complete, an “Estate” is created.

The personal representative plays a critical role in the probate process, with duties that include overseeing the Estate’s administration; identifying and valuing probate assets; notifying creditors of the existence of the Estate and manner for making a claim; ensuring the Estate’s taxes and debts are paid; and distributing the remaining probate assets to the beneficiaries. If there is no Last Will, the Court appoints a personal representative from those individuals that have standing, according to the Wisconsin statutes.

Steps in the Probate Process in Wisconsin

1. Filing the Will and Petitioning for Probate: State law requires any person in possession of a Last Will to file it with the Probate Court of the county in which the deceased person was domiciled. A petition to start the probate process is also submitted to the Probate Court. If a person dies without a Last Will, an interested person (normally a family member) may petition the Probate Court to commence a probate proceeding under Wisconsin’s laws of intestacy. In either event, the petition for probate can either request a Formal Probate Proceeding or an Informal Probate Proceeding. There can be various advantages and disadvantages to either approach based on the size and complexity of the Estate.
2. Appointment of a Personal Representative: The Probate Court reviews the Last Will (if one exists) and appoints a personal representative to administer the Estate. The Court will normally appoint the person or persons named in the Last Will as personal representative(s). If there is no Last Will, the Court will normally appoint one or more of the deceased person’s beneficiaries or a creditor to serve. Under certain circumstances, the Court may appoint an independent third party, such as a bank trust company, to serve as personal representative. Whoever is appointed is responsible for carrying out the instructions in the Last Will or following state laws regarding intestate succession (when someone dies without a Last Will).
3. Inventory and Valuation of Assets: The personal representative is required to make an inventory of the deceased person’s assets that are subject to probate, which can include real estate, bank accounts, investments, and personal property. These assets will be valued and their titles transferred to the Estate.
4. Settling Debts and Taxes: The personal representative notifies creditors of the deceased person’s death and allows them to make claims for any outstanding debts. In Wisconsin, creditors must submit their claims within a specific timeframe defined by the Probate Court when the Estate is created. The personal representative may also be responsible for filing the deceased person’s final income tax returns, estate taxes, and any other applicable tax filings.
5. Distribution of Assets: After debts and taxes are settled, the personal representative distributes the remaining assets according to the deceased person’s Last Will or, if there is no Last Will, according to Wisconsin’s laws of intestate succession. The personal representative will also need to collect estate receipts from all beneficiaries to prove to the Probate Court distributions were made.
6. Closing the Estate: Once all debts, taxes, and distributions have been handled, the personal representative files a final accounting with the Probate Court. If the Probate Court is satisfied with the process, the Estate is formally closed, and the personal representative is discharged from their duties.

Probate Alternatives in Wisconsin

Probate alternatives are methods that allow the transfer of assets without going through the probate process. These alternatives can help save time, reduce costs, and maintain privacy. Common probate alternatives include trusts, which allow assets to be held and distributed pursuant to the terms of the trust, and joint ownership, whereby assets automatically pass to the surviving co-owner. Additionally, beneficiary designations on life insurance and retirement accounts, payable-on-death (POD) and transfer-on-death (TOD) designations for other financial accounts and real and personal property can ensure a smooth transfer of assets without the need for probate. Heirs may also utilize Wisconsin’s Transfer by Affidavit procedures to transfer assets if the deceased person’s assets subject to probate total less than $50,000. All of these alternatives can be especially useful for individuals seeking to simplify post-death administration.

Conclusion

Probate in Wisconsin is a crucial process that ensures a deceased person’s affairs are handled according to state law. While it may seem daunting, especially for large estates, understanding the steps involved and the role of the personal representative can help guide families through the procedure. By exploring alternatives, such as trusts, beneficiary designations and joint ownership, individuals can potentially avoid probate and streamline the post-death administration process. This article only provides a brief overview of the probate process in Wisconsin and potential alternatives. Seeking legal counsel to navigate the complexities of probate law and applying the law to your set of circumstances can be crucial for a smooth post-death administration.

Axley has attorneys in our Madison, Waukesha, and Janesville offices that regularly assist families with estate planning and post-death administration, including probate and non-probate administration issues. Our attorneys handle probate matters throughout the state of Wisconsin. Please contact an Axley office today for help with your probate administration or assistance in structuring your estate plan.