November 1st, 2024 |

• Estate Planning

By Attorney Maxx Forti

Reading Time: 3 minutes

Probate law in Wisconsin governs the legal process by which a deceased person’s assets are distributed and their debts settled. The probate process can be complex, involving various legal requirements and procedures. Understanding these laws is crucial for both executors and beneficiaries to navigate the system effectively.

What is Probate?

Probate is the legal process that takes place after someone dies. It involves validating the deceased’s will, if one exists, appointing an executor or personal representative, identifying and inventorying the deceased’s assets, paying debts and taxes, and distributing the remaining assets to beneficiaries. In Wisconsin, the probate process is supervised by the circuit courts, which ensures that the deceased’s wishes are honored according to state law.

The Importance of a Will

In Wisconsin, having a will is essential for an efficient probate process. A will outlines how the deceased wishes to distribute their assets. If a person dies without a will, they are said to have died “intestate,” and Wisconsin’s intestacy laws dictate how their assets will be divided. This can lead to outcomes that may not reflect the deceased’s intentions.

A valid will in Wisconsin must be in writing, signed by the testator (the person making the will), and witnessed by at least two individuals who are not beneficiaries. If the will meets these criteria, it is generally accepted by the probate court.

The Probate Process in Wisconsin

1. Filing the Will: The first step in the probate process is filing the deceased’s will with the appropriate circuit court in the county where the deceased lived. This must typically be done within 30 days of the individual’s death.

1. Appointment of Personal Representative: If the will names an executor, that person is usually appointed by the court to manage the estate. If there is no will or the executor cannot serve, the court may appoint a personal representative, often a close family member or another interested party.

1. Inventory of Assets: The personal representative is responsible for identifying and gathering the deceased’s assets. This includes real estate, bank accounts, investments, and personal property. An inventory must be filed with the court, detailing the estate’s value at the time of death.

1. Settling Debts, Taxes, and Administrative Expenses: Before assets can be distributed, the estate’s debts and taxes must be settled. This may include outstanding bills, funeral expenses, and taxes owed to the state or federal government. The personal representative must publish notice to creditors. Creditors are provided three months to file any claims against the estate.

1. Distribution of Assets: After debts, taxes, and expenses are paid, the remaining assets can be distributed to the beneficiaries according to the will. If the deceased died intestate, the distribution will follow Wisconsin’s intestacy laws, prioritizing spouses, children, and other relatives.

Intestacy Laws in Wisconsin

When a person dies without a will, Wisconsin’s intestacy laws determine how their assets are distributed. The hierarchy is as follows:

1. Surviving Spouse: The surviving spouse inherits a significant portion of the estate. If there are no children, the spouse receives the entire estate. If there are children, the spouse typically receives one-half of the estate, with the children inheriting the other half.

1. Children: If there is no surviving spouse, the children inherit the estate equally. If a child has predeceased the parent, that child’s share will pass to their own children (the deceased’s grandchildren).

1. Other Relatives: If there are no surviving spouses or children, the estate may pass to parents, siblings, or more distant relatives according to state law.

Summary Proceedings

In certain circumstances, Wisconsin allows for simplified probate procedures known as “summary proceedings.” This may apply to smaller estates, typically valued under a certain threshold (currently $50,000, excluding the value of the homestead). Summary proceedings expedite the process, allowing for quicker distribution of assets without the extensive requirements of formal probate.

Challenges in Probate

Probate can be a contentious process, particularly if there are disputes among family members regarding the interpretation of the will or the distribution of assets. Common challenges include:

1. Will Contests: Heirs may contest the validity of the will, often citing issues such as lack of testamentary capacity or undue influence.

1. Disputes Over Asset Valuation: Beneficiaries may disagree on the value of certain assets, leading to conflicts and potential litigation.

1. Claims by Creditors: Creditors may file claims against the estate, which can complicate the distribution process.

Conclusion

Navigating Wisconsin probate law can be intricate, but understanding the essential components helps to ensure that the process runs smoothly. Whether you are a personal representative or a beneficiary, being informed about the probate process, intestacy laws, and potential challenges can aid in effectively managing the estate of a loved one. Seeking legal advice from a qualified attorney can also provide guidance tailored to individual circumstances, ensuring compliance with Wisconsin laws and protecting the interests of all parties involved.