What is Probate?
Is Probate Required in Wisconsin?
How do you Avoid Probate in Wisconsin?
Can an Executor of an Estate in Wisconsin Be Compensated?
How Much Does an Executor get paid in Wisconsin?
How Long Does Probate Take in Wisconsin?
Do all Estates Have to Go Through Probate in Wisconsin
Does a Will Have to be Probated in Wisconsin?
How Long do you Have to File Probate After Death in Wisconsin?
Settling an Estate in Wisconsin
Probate Court in Wisconsin
Probate Code in Wisconsin
If you have a probate case in Wisconsin, there is some important information you should know about the process and rules. Probate is not typically something people think about until they are involved in an estate going through probate. But because probate laws can vary drastically from state to state, keeping up on the local timelines, rules and deadlines in Wisconsin is important for any probate situation. When a family is grieving the loss of a loved one, a costly, lengthy and complicated legal probate process is the last thing they need. Without proper estate planning, you can be plagued by questions like, Who has to take charge of the will? What happens if there is no will? And what are our filing deadlines? But this stress can be avoided by a little planning and understanding the xkey facets of probate law in Wisconsin. So let’s break down the process of probate in Wisconsin.
What is Probate?
Probate is the official way a deceased person’s estate is settled after his death and ownership of his assets are transferred after he dies. This process includes fulfilling that person’s final wishes, paying out assets and property to beneficiaries and heirs, and settling any outstanding debts and taxes. All of this must be done according to Wisconsin state law, and sometimes under the supervision of a state court.
The purpose of this probate process is to make sure that the deceased’s wishes are carried out, without fraud and according to the law. Probate also ensures that the rights of beneficiaries and others who have an interest in the estate are protected. In most cases, the probate process is based on the terms found in the deceased person’s will; however, if there is no will, then probate moves forward under the default probate laws of Wisconsin.
Is Probate Required in Wisconsin?
The settling of an estate and fulfillment of the terms of a will are required under Wisconsin state law. However, not all estates must go through the formal probate process in Wisconsin. Wisconsin has an exemption for “small estates” whose assets are less than $50,000 in total; these small estates do not require court supervision to be settled.
But if the total value of the estate’s assets is greater than $50,000, then Wisconsin law mandates that the probate process move forward according to state statute. Additionally, if there is any dispute between beneficiaries, creditors or other interested parties about the distribution of assets or terms of the will, then a Wisconsin court must supervise the probate process. A probate judge must also supervise the probate process if other contested issues arise, such as the transfer of property ownership or guardianship of a minor.
How do you Avoid Probate in Wisconsin?
There are several ways that the formal probate process can be avoided under Wisconsin law.
First, you can avoid probate for small estates whose assets are valued at less than $50,000. In this situation, you can avoid the time, hassle and money of formal probate by using a formal document called an “affidavit.” Any interested party, such as an inheritor or creditor, can file a simple small estate affidavit that is signed under oath, stating that they are entitled to a certain asset in the estate. On the affidavit, the heir or creditor must describe the property, list its value and state whether the deceased person received medical services that were provided by the state. (In the case where the deceased person received medical care by the state, the heir or creditor must also give notice of their intent to file the affidavit with the Wisconsin Department of Health Services.)
Then, the institution (such as a bank) holding the estate property requested must receive both the affidavit and the death certificate. After a thirty-day waiting period, that person or institution must release the requested property according to the simple affidavit. All of this can occur out of court, without the supervision of a probate judge.
Another way to avoid costly formal probate in Wisconsin is through a living trust. In Wisconsin, you can create a living trust that will allow you to avoid probate for almost any asset you own, from your real estate and vehicles, to your bank account and investment accounts. This living trust document acts similarly to a will, as it names a person who will take over as trustee for the estate after your death. Importantly, for the living trust to function properly, you must state that you transfer ownership of your property to the trustee upon your death. Then, all of the property and assets included the living trust will be transferred to your beneficiaries and creditors, according to the terms you set forth in the living trust document. This process is typically straightforward and quick, without dealing with complicated court filings for formal probate proceedings.
Can an Executor of an Estate in Wisconsin Be Compensated?
A common question asked by individuals asked to serve as executor for a loved one is whether it is possible to be compensated for the work of administering the estate. Typically, the executor of an estate—called the “personal representative” in Wisconsin—is eligible to receive a fee under Wisconsin state law.
In many cases, and especially when the personal representative is a family member, the executor may refuse to accept payment of the executor’s fee. This could be for reasons such as acting out of love and affection, or because they are also named as a beneficiary in the will, meaning that any fee payment would come out of their inheritance.
How Much Does an Executor get paid in Wisconsin?
Wisconsin law stipulates that the personal representative of an estate is paid 2% of the total value of the estate.
The terms of the deceased person’s will or living trust may also stipulate the compensation for the personal representative, typically either as a lump sum or as a percentage of the estate’s total asset value. Sometimes, personal representatives are compensated for their work with the transfer of physical or real property.
All of these payments and assets are transferred to the personal representative from the funds of the estate.
How Long Does Probate Take in Wisconsin?
The entire probate process can take as little as six months; however, for complicated or contested estates, the process can take two years, or even longer. In these cases, a court can grant a time extension for probate completion by showing good cause for any delay. This is often the case with complicated or particularly large estates, or when disputes arise among beneficiaries.
Do all Estates Have to Go Through Probate in Wisconsin
No, not all estates must go through the formal probate process in Wisconsin.
As described above, smaller estates (valued at less than $50,000) and property passing by living trust document can avoid the complicated process of formal probate under Wisconsin law.
If you have accounts that have beneficiary designations, such as life insurance policies or retirement accounts with named beneficiaries, these assets will pass to the beneficiary automatically at your death. Additionally, you can avoid formal probate in Wisconsin by adding a “payable on death” designation to your financial holdings, such as bank accounts, savings accounts, and certificates of deposit. With this payable on death designation, you still control all of the assets in these accounts until your death. Then, after your death, your beneficiaries can claim the money directly from the financial institution (such as a bank) holding the accounts). All of this can occur quickly and easily, without formal probate proceedings.
Another way of avoiding formal probate in Wisconsin is by owning property jointly with another person with a “right of survivorship.” This type of ownership is typically associated with real estate, and the surviving co-owner automatically owns the property when the other co-owner dies. The transfer of ownership occurs without requiring formal probate proceedings. This form of joint ownership is available in Wisconsin for property owned in a joint tenancy, wherein a couple—whether married or not—owns property with each person having an equal share. Property owned as a joint tenancy is automatically transferred to the surviving owner upon the death of one owner.
Finally, because Wisconsin is a “marital property state,” married spouses generally own all of the property they acquire during their marriage jointly. The only exception is if the couple takes specific steps to keep property separate. If one spouse dies, any assets under the marriage property umbrella automatically pass to the surviving spouse under Wisconsin law.
Does a Will Have to be Probated in Wisconsin?
If an estate with a will exceeds the small estate threshold in Wisconsin, then it must move forward under probate before the assets of the estate can be transferred to the deceased person’s heirs or beneficiaries. Note that a will is different from the “living trust” document explained above, where formal probate can be avoided.
This probate procedure can occur either informally, where the transfer of the estate goes smoothly without dispute. Informal probate is much less costly and typically can be handled through the mail service. Formal probate procedure occurs under a court’s supervision before a probate judge. Formal probate is generally required when there are disputes between beneficiaries about the estate’s assets or the terms of the written will.
How Long do you Have to File Probate After Death in Wisconsin?
In general, Wisconsin state law requires that an estate be closed within 18 months of the person’s death. However, several Wisconsin counties have recently adopted statutes requiring that probate be completed within 12 months of death. After they receive notice of the death, creditors have three months to file any claims against the estate.
Settling an Estate in Wisconsin
Wisconsin, along with 14 other states, has adopted a set of laws called the “Universal Probate Code,” which outlines the general procedures that are required to settle an estate by probate. This process requires following certain steps according to Wisconsin state law.
The probate process is typically managed by a personal representative who is named in advanced by the deceased person, usually in the will. If there is no personal representative chosen, the court will appoint one to fulfill the role. The personal representative will lead the probate process, including:
- Identifying all of the assets and debts of the deceased person;
- Notifying all beneficiaries and creditors after the death;
- Paying all funeral costs;
- Receiving and managing creditor claims against the estate;
- Paying debts owed by the estate to creditors, including any fees required for formal probate procedure;
- Transferring property and assets to heirs and beneficiaries;
- Filing outstanding tax returns for the deceased, including any returns to cover income received by the estate after the death; and
- Filing estate tax returns within nine months after the death, if the state is large enough to be subject to estate taxes (currently $11.4 million in assets are exempt from estate tax).
If there are any remaining funds after all debts, benefits and taxes are paid out, then the personal representative may distribute the remaining assets to beneficiaries and complete the probate process.
Probate Court in Wisconsin
The probate court in Wisconsin is assigned to the state district court where the deceased person lived. The Wisconsin court system sets forth resources for you if you find yourself involved in the probate process, whether as a family member, creditor or beneficiary, or as a personal representative named to manage the probate process.
Wisconsin Courts have a self-help law center with resources to guide you through the process, including a handbook prepared by the Wisconsin Register in Probate Associate, that can serve a personal representative’s guide. You can find the handbook here: https://www.wicourts.gov/services/public/selfhelp/docs/probateguide.pdf.
The Courts’ self-help law center also includes a list of resources and court forms that can help you navigate the probate process. These resources can be found on the Wisconsin Courts website here: https://www.wicourts.gov/services/public/selfhelp/probate.htm.
Additionally, the Wisconsin State Law Library website has a list of helpful resources and guides to help you through the ins and outs of probate law: http://wilawlibrary.gov/topics/estate/probate.php.
Probate Code in Wisconsin
The Wisconsin State Statutes are your best primary resource for learning about the probate process and understanding your rights and responsibilities if you find yourself named as a personal representative for an estate. Wisconsin Statutes Chapters 851 through 882 govern state probate procedures and can be found here: http://legis.wisconsin.gov/statutes/Stat0851.pdf.
