Probate & Trust Administration FAQs

What Assets Pass Through Probate?

Any asset owned in your sole name at your death will pass through probate. Assets held in a trust, assets with beneficiary designations (such as life insurance and retirement accounts), property held in joint tenancy, transfer-on-death or payable-on-death accounts, joint bank accounts, and other assets not owned in your sole name pass outside of probate.

When my Spouse Dies is Probate Required?

Because Wisconsin is a marital property law state, often when the first spouse dies, no probate is required. However, there are other procedures that are usually needed, such as removing your spouse's name from the deed to your house, which can normally be done with a termination of decedent's interest form that your attorney can draft for you. Even though probate may not be required, if you don't take the appropriate action after the death of your spouse, it can slow things down when you die and make the administration of your estate more difficult for your children or loved ones who survive you. Talk to your probate attorney about what needs to be done when your spouse dies.

How Long Does Wisconsin Probate Take?

Wisconsin state law dictates that an estate should be closed within 18 months after it is opened. Many counties strive to close out probate cases in a shorter time, typically twelve months. However, the most complex estates may take more than two years to close, and the most straightforward might be wrapped up in six months. The length of the process depends on the size of the estate, the complexity of estate assets, tax issues, creditor claims, whether there is a will contest, and more. An experienced Wisconsin probate attorney can help the probate process move as efficiently as possible.

How Much Does Probate Cost?

How much probate costs depends in large part upon the size and complexity of the estate. The primary costs involved in a Wisconsin probate matter include court costs, a probate bond if one is required, and fees to the personal representative and the probate attorney. Wisconsin statutes set the court filing fee at 0.2% and the personal representative's fee at 2.0% of the value of the estate's assets.

It used to be common for Wisconsin estate attorneys to also base their fees on a percentage of the estate's assets. However, a 1975 Wisconsin Supreme Court case found that this practice was unreasonable. Since then, Wisconsin estate attorneys usually charge an hourly rate. It is reasonable to expect that an attorney will have to put in more time on a large or complex estate, so his or her fees may be somewhat higher for a large estate than for a small one. Sometimes even estates of relatively small value can have complex issues that require more of the attorney's time, though.

Wisconsin statutes permit the funeral home and estate attorney to be paid before most other creditors, so usually the attorney is paid from the estate's assets and not from the personal representative's personal funds.

What are "Probate Alternatives"?

A will is not the only way to pass assets to your loved ones after your death. In Wisconsin, assets left through a will must go through formal or informal probate, unless their total value is $50,000 or less, in which case summary settlement, summary assignment, or transfer by affidavit may be used. Summary settlement and summary assignment still go through the probate court, but they are simpler, abbreviated procedures.

Transfer by affidavit does not involve the probate court at all. Other options that bypass the probate process include a "marital property agreement" between spouses that allows transfer of property outside probate; survivorship marital property; joint tenancy with right of survivorship; and payable-on-death or transfer-on-death designations. You can also create a living trust, which allows you to use and manage your property during your life, then designate a successor trustee who will manage and distribute the assets outside of probate after your death. Talk to your estate planning attorney about which of these options is best for your needs.

How Do I Find Out if my Loved One Had a Will?

If you are not certain whether or not your loved one had a will, you will want to look through his or her personal effects to see if you can locate one. Filing cabinets, desk drawers, and safes are all logical places to check. You should also contact your loved one's attorney, if you know that he or she had one, to see if the will is on file at the attorney's office. You might also consider asking close friends of the deceased if they knew of a will or even acted as witness to one. In Wisconsin, you can also call the probate registrar in the county in which your loved one lived to see if he or she filed a will. Although filing a will prior to death is rare, it does sometimes occur.

Some people also keep their wills in a safe deposit box. If you know that the deceased had a safe deposit box, you should talk to their financial institution. Wisconsin law requires that anyone (including a financial institution) who has custody of a will must either file it with the court, or deliver it to the person nominated in the will as personal representative, within 30 days.

What if I Can't Find the Will?

If you know your loved one had a will but you can't find the original, Wisconsin law provides that the probate court may still establish the will's validity. If a copy of the will exists, this process is easier. Even if no copy exists and the original will is lost, accidentally destroyed, intentionally destroyed without the permission of the person who made it, or otherwise missing, the court is authorized to take proof that the will was made and is still valid.

What if a Family Member Died Without a Will?

The legal term for dying without a will is "dying intestate." All states, including Wisconsin, have intestacy statutes (laws) that dictate how a deceased person's property will be distributed in the event of their death if they had no will. These laws attempt to approximate how most people would want their property distributed had they made a will.

What if I Don't Like the Personal Representative?

If a personal representative has been named in a will and/or appointed by the court, they can be removed, but only for certain reasons stated in Wisconsin law. If you want to have a personal representative removed, you must petition the court and give valid reasons for their removal. Otherwise, like it or not, they are entitled to carry out their appointed duties.

Can I Disinherit One of my Children?

Yes, you can, but you may want to reconsider whether you should. Disinheriting a child can lead to a will contest and the dissipation of estate assets in litigation. Even if there is no will contest, disinheriting one or more children is likely to lead to strained family relationships, something you probably do not want. Discuss with your estate planning attorney your reasons for wanting to disinherit one child. She may be able to offer you alternatives that will achieve your goals without creating strife in the family.

What if My Will Still Names my Ex-spouse?

Many people execute a will while married, get divorced, then fail to update their will. Wisconsin law revokes provisions in a will in favor of an ex-spouse, so the good news is that if your will left everything to the person you were married to at the time the will was signed, they will probably not inherit anything from you after a divorce. However, there are exceptions, such as if the will itself or a court order provide otherwise, if the divorce is nullified, or if you remarry the spouse. If you are divorcing, your best course of action is to execute a new will right away, naming the persons you want to inherit from you and disinheriting your estranged spouse.

If you have more questions about Wisconsin probate, or your particular situation, we invite you to contact our law office.