If you are here to learn about Wisconsin probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Wisconsin is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as direct by the will—or by the state law if there is no will
In Wisconsin, if someone has total assets or real property valued over $50,000, they will probably have to have their assets probated.
What's so bad about probate in Wisconsin... and what should I do next?
Many people have heard that probate is bad news. It tends to be expensive, it's time-consuming, and it's also a public process. Wisconsin has two forms of probate- informal and formal. Informal probate is an administrative proceeding with the probate registrar where formal probate is judicial proceeding before the court. Both require a lot of contact with the system and a lot of paperwork. Both are public.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is a probate started in Wisconsin?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the personal representative starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the personal representative chosen?
If the decedent had a will, the person named in the will as the personal representative will serve, if eligible. If that person is unable or unwilling to serve as personal representative, or if there is no Will, then any interested family member or person can petition the Court to be the representative of the Estate.
How does the personal representative get paid?
Wisconsin law provides that the personal representative gets paid 2% of the net value of the estate or a rate agreed with the decedent or a majority of the heirs. This amount must be approved by the court.
Could I be held personally liable for making a mistake as a personal representative?
Being an Executor is a big responsibility. Wisconsin's probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
My loved one had a trust...will we need to go through probate?
In most cases, no. If your loved one's assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But often, family members' of a recently passed loved find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones' assets were not owned in the name of their Trust. That is why it is so very important that you have regular reviews of your plan and assets so the planning you do now works as planned later. At Lakefront Law, we take the extra steps to make sure your assets are owned in a way that makes your estate plan work.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Wisconsin probate and intestate laws, which state that a person's estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents). However, things get more complicated for blended families. If you have children from a previous marriage, it may surprise you to learn that the surviving spouse will split marital property with the children. This is why estate planning is very important for blended families.
How long does Probate take?
The length of time of a probate will depend on several factors. Several Wisconsin counties have adopted statutes that require probate to be completed in 12 months. However, there are procedures that allow extensions to that timeframe. Extensions are not uncommon.
How much does Probate Cost?
Generally, you can expect to pay approximately 4-5% of the value of the estate after all is done. The fees generally include those listed below. Some fees are set by Wisconsin state law (Probate Code includes Wisconsin Statutes, Sections 851- 882).
- Personal Representative fees- 2.0% of the net value of the estate or a rate agreed with the decedent or a majority of the heirs
- Registrar of probate fees- 0.2% of the value of the property subject to administration minus any liens or charges
- Guardianship/ Conservatorship- 0.2% of the value of the property less any liens or charges
- Attorney Fees- these can vary and can be set by the court
- Other fees for document filing, recording fees, property appraisal fees, etc.
If there is a dispute regarding the process, the fees will be higher.