When a person passes away, their assets must be disbursed according to their estate plan and, when applicable, state laws and probate. At Heritage Law Office, our probate lawyer in Wisconsin helps executors of Wills or beneficiaries of an estate through the probate process. Starting with identifying estate assets and ending with the distribution of assets and inheritances to the beneficiaries. Contact us by either using the online form or calling us directly at 414-253-8500 to learn more.
What Constitutes Probate in Wisconsin?
Probate is the process by which a deceased person's assets and belongings, known as their estate, are passed on to their heirs and successors. It depends on your jurisdiction, but most matters related to wills, estates, conservatorships, and guardianships are handled by probate courts.
Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.
The Early Stages of Probate
The probate process begins when the decedent passes away. A petition is filed with the proper court to have probate opened. 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:
- Notify the heirs;
- Publish notice for any creditors;
- Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
- Secure all assets.
How probate proceeds depends on whether there is a Will or not.
Probate with a Will
If the decedent died with a Will, the Will must be found, filed with the court, and authenticated before its terms are put into action. This process often involves a court hearing where parties named in the Will and parties not named but who would have inherited but for the Will are in attendance. During this hearing, an interested party may contest the Will.
If there are no challenges to the Will, the executor must first pay off all debts of the estate. Once creditors are paid, the executor distributes the remainder to the beneficiaries in accordance with the Will.
If the Will is challenged, then another hearing may be set. The challenger has the burden to prove the Will's invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to probate court.
If the court decides the Will is valid, the executor can pay debts, bills, and applicable taxes, and distribute assets. If the court decides the Will is invalid, it will apply the state's intestacy laws. On the other hand, if the court determines the other Will is valid, it will allow the executor to apply the valid Will (as opposed to the invalid Will).
Probate without a Will
If there is no Will, the decedent is said to have died intestate. This does not mean their assets will not be inherited, it just means their property will pass to their heirs through their state's intestacy laws.
Once the executor has located all the decedent's assets and notified and paid the creditors, the probate judge will apply the state's laws of intestacy and distribute the 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.
Do You Need a Probate Lawyer in Wisconsin?
Whether you need a probate lawyer depends on how well the estate plan was set up. Regardless, a probate lawyer offers important services that can help speed up the probate process. A probate lawyer can help with the:
- Collection of proceeds from life insurance policies
- Identification and securing of estate assets
- Appraisals for the decedent's real property
- Payment of bills, debts, and applicable taxes
- Resolution of any income or estate tax issue
- Preparation and filing of all documents required by a probate court
- Management of the estate checking account
- Transfer of assets to beneficiaries
Contact a Probate Lawyer in Wisconsin Today
We are here to help you with your estate plan, so that it survives any challenge during probate. If you are the executor or beneficiary of an estate, we can also guide you through the probate process. If you have questions, contact Heritage Law Office either online or at 414-253-8500 to schedule a free consultation with our estate planning lawyer today.
Frequently Asked Questions (FAQs)
1. What are the duties of an executor in the Wisconsin probate process?
As an executor, your primary responsibilities are to identify the assets of the deceased person, notify the heirs and any creditors, take inventory of the estate, secure all assets, pay off all debts, and distribute the remainder of the assets to the beneficiaries as per the Will or state's intestacy laws. You will also need to submit receipts and records of everything to the court and request the court to close the estate.
2. What happens if a Will is contested during probate in Wisconsin?
If a Will is contested during the probate process in Wisconsin, a court hearing may be scheduled. The party challenging the Will has the responsibility of proving its invalidity, which could be based on allegations of undue influence, fraud, or misrepresentation. If the court decides the Will is invalid, it will apply the state's intestacy laws. If there's a second Will and the court determines it to be valid, the executor can apply this Will.
3. How does probate work in Wisconsin when there is no Will?
If the decedent dies without a Will (intestate), their assets will still be inherited but the distribution will be done according to Wisconsin's intestacy laws. After the executor has identified all the decedent's assets, notified and paid the creditors, the probate judge will apply the state's laws of intestacy to distribute the estate to the decedent's heirs.
4. Do I need a probate lawyer in Wisconsin?
The need for a probate lawyer in Wisconsin depends on the complexity of the estate. A probate lawyer can provide significant assistance in expediting the probate process, dealing with legal issues, preparing and filing court documents, managing the estate's checking account, and transferring assets to beneficiaries.
5. How long does the probate process usually take in Wisconsin?
The duration of the probate process in Wisconsin can vary greatly depending on the complexity of the estate, whether a valid Will exists, and if the Will is contested. Generally, the process can take anywhere from several months to over a year. Issues such as disputes among beneficiaries, liquidation of assets, or delays in the court system can further extend the timeline. It's recommended to consult with a probate lawyer for more accurate timeframes based on the specifics of your situation.
