Ensuring Last Wishes Are Honored

What Is Probate?

Probate, also called estate administration, is the process by which a deceased person’s assets are transferred to their heirs or beneficiaries, debts are settled with creditors, and instructions given in a last will and testament or other estate planning documents are affirmed. While the term estate commonly has grandiose connotations, in legal terms it is used to define the total property owned by a person at the time of their death. The value of a person’s estate is made up of held assets that contributed to their net worth minus any debts they had outstanding, like loans, mortgages, or liens.

In Wisconsin, any estate valued at $50,000 or more must go through the probate process, where the decedent’s last will and testament are first confirmed as authentic before their estate is divided up to heirs and beneficiaries as the person intended. If the person died intestate, or without a will, their estate is still subject to administration according to state intestacy laws, which govern the how assets are transferred to interested parties and debts are settled without record of the deceased person’s express wishes.

Roles And Responsibilities Of Those Named In A Will

  • Testator: The person who dies, prompting the need for administration of an estate according to instructions previously documented during the estate planning process.
  • Grantor: Also known as a settlor, this is a person who establishes and funds a trust during the estate planning process so that the funds in it may be used for expenses incurred or for the benefit of people or entities named as beneficiaries. This person is typically also the testator.
  • Trustee: A person, trust company, or banking institution that the grantor designates to keep and administer the trust according to its terms. This entity is also commonly known as a fiduciary.
  • Executor: The person named in a will and/or appointed by the Court who is responsible for carrying out the terms of the will and administering the testator’s estate. This person is also known as a personal representative.
  • Administrator: A person named by the Court as legal representative of the deceased person if the executor is unable or unwilling to fulfill their duties. This person can be an adult child, surviving spouse, or other family member, or a third party like an attorney. The administrator is responsible for gathering the deceased person’s assets and establishing their true value, settling existing debts with creditors, and then distributing the remainder of the assets to named heirs or beneficiaries.
  • Beneficiary: A person or organization designated in estate planning documents to receive a portion of the decedent’s assets.
  • Heir: A person who is legally entitled to a portion of the deceased person’s assets as an interested party under state intestacy laws. While a person can be both an heir and a beneficiary, the terms are not equal. A beneficiary is designated in the decedent’s will or trust as intended to receive a portion of the estate assets, and can be either a person or an institution like a charity that the person wishes to leave money to. An heir can only be a person who is legally considered an interested party. When a person dies without a will it is impossible to ascertain if they intended to bequest money to a non-human entity unless the entity in question is a creditor, so the non-human entity would not have a claim to the person’s assets notwithstanding any debt obligations.

The Probate Process

  • Determine whether the estate will undergo formal or informal probate, and file the required documents with the probate registrar in the county where the deceased person lived, or where the majority of their assets are located.

  • Gather and inventory the estate’s assets, and obtain documentation showing the assets’ true value if necessary.

  • Sell any real estate, vehicles, jewelry, or other physical assets that have not been given to a person or entity as a bequest in the last will and testament.

  • Distribute asset shares to beneficiaries and heirs as designated in the last will and testament or by trust provisions, or, if the person died without a will, as dictated by state intestacy laws.

  • Pay any outstanding debts from funeral or burial services.

  • Pay any outstanding state or federal tax debt and estate taxes incurred during probate.

  • Settle any debt obligations with creditors.

  • Prepare a final estate account listing the value of assets that were included in the estate as of the date of death, and if or how those assets were distributed until the completion of the administration. Provide a copy of the final estate account to all interested parties.

Documents Required To Initiate Probate In Wisconsin

  • Last Will and Testament: Describes how a person wants their assets to be distributed upon their death
  • Application for Formal or Informal Administration: Lists the net value of the decedent’s estate, acknowledges the presence of a last will and testament if applicable, and names or nominates trustees and personal representatives to the estate. Once a probate registrar approves an application for formal or informal probate, the Court will issue domiciliary letters.
  • Domiciliary Letters: Legally appoint a personal representative on behalf of the estate. When they receive the domiciliary letters, the personal representative can start acting on their duties.
  • Notice to Creditors: Public statement of the person’s death via the newspaper, which serves as notice to creditors and other interested parties to file a claim against the estate if the wish to do so. In Wisconsin, creditors and other interested parties have four months from the date of the publication of this statement to file claims declaring entitlement to a share of the estate’s assets.
  • Affidavit of Publication: Obtained from the newspaper after publication of the testator’s death and filed with the Court as proof that the requirement to notify creditors and other interested parties was fulfilled.
  • Affidavit of Service: Demonstrates that all interested parties have received a copy of the decedent’s last will and testament, and can reference it to clarify the person’s wishes for bequests and other asset distributions
  • Proof of Heirship: outlines interested parties’ relationship to the decedent
  • Consent to Serve: Parties named in the will or appointed by the Court as personal representative or special administrator of the estate acknowledge the role and the obligation that they have to fulfill it.
  • Waiver and Consent: Contains signatures of all interested parties in the estate, and acknowledges that the interested parties consent to informal administration if they do not dispute the existing will and/or the parties that have been named in it or appointed by the Court to serve as administrator or executor of the estate.
  • Statement of Informal Administration: If the estate will be undergoing informal probate, as most estates do, this form is completed by the probate registrar stating that the decedent’s will and related documents were received and the filed application for informal probate was accepted.
  • Intestacy Succession In Wisconsin

    Source: Wisconsin Court System Wisconsin Register In Probate Association. (2022). Intestate Succession Chart. A Personal Representative’s Guide To Informal Estate Administration. Retrieved from https://www.wicourts.gov/services/public/selfhelp/docs/probateguide.pdf.

    Intestacy Succession Explained

    If a person dies without an existing will, or if all efforts to find a valid will have been unsuccessful, their estate is distributed to heirs according to state intestacy laws. If the decedent has a surviving spouse or domestic partner, even if the parties have children, grandchildren, or great-grandchildren (who are legally known as issue) together, the entirety of the deceased person’s estate is transferred to the spouse or domestic partner. If the decedent has children, but some or all of these children are not also the children of the surviving spouse or domestic partner, the surviving partner would receive one-half of the estate excluding the decedent’s share of assets held jointly, while the portion of the estate not going to the surviving partner would be distributed to the deceased person’s issue per stirpes. Per stirpes is a method of distribution to heirs by which the estate’s assets are divided at each generation, beginning with the decedent’s children, into shares. In this case, each child, living or deceased, is entitled to a share, with the deceased issue’s share being divided per stirpes amongst their descendants, if any, or being divided amongst living siblings, if no descendants exist. In summary, if the deceased person had children, their estate is divided 50/50 between the children and the surviving spouse or domestic partner.

    If the person did not have a spouse, domestic partner, or children, the decedent’s living parents are entitled to the estate’s assets. If both parents are deceased, the person’s siblings and the siblings’ issue are entitled to shares of the estate per stirpes. If there are no siblings or siblings’ descendants, the deceased person’s assets are split between their maternal and paternal grandparents. Half of the estate would go to the maternal grandparents, to be split amongst the surviving grandparents or their issue per stirpes, while the other half would go to the paternal grandparents and divided the same way. If the deceased person does not have grandparents or grandparents’ descendants on either the maternal or paternal side, the entirety of their assets would transfer to the existing grandparents or their issue.

    Finally, if the deceased person has no surviving relatives, their assets become state property in a process known as escheatment. If the holders of the assets (which could be private parties, businesses, or financial institutions) are unable to find any heirs despite due diligence, they can report their holdings to the Department of Revenue as unclaimed or abandoned property. Any holder of unclaimed property is also required to file an Unclaimed Property Holder Report. State departments of revenue use a variety of methods, including advertisements, searchable online databases, and matching information from Unclaimed Property Holder Reports to tax records and other government information to try to find heirs to unclaimed property. Even if they are unsuccessful given due diligence, the Department of Revenue holds most assets indefinitely, while some holdings are subject to a statute of limitations of 10 years. If at any time heirs to unclaimed money come forward and can prove their entitlement, the Department of Revenue will transfer the funds to them at no charge.


    Does Probate Administer All Property Of The Deceased?

    Not necessarily. Depending on how assets were held or designated for inheritance, they are either assigned as part of a person’s “probate estate” or “non-probate estate”.

    A probate estate is made up of any assets that have to go through the probate process before they can be distributed to heirs as designated in the last will and testament. Assets in the probate estate usually include:

  • Real estate in which the deceased person was a sole owner or a tenant in common
  • Bank accounts held solely in the deceased person’s name
  • Personal property of significant value, such as vehicles, jewelry, or furniture
  • Life insurance or brokerage accounts which list the deceased person or their estate as beneficiary
  • Interests in corporations, business partnerships, or limited liability companies
  • Assets that are part of the non-probate estate can transfer to beneficiaries without going through probate provided that the designated beneficiaries have been properly indicated and the individual’s ownership share is clearly established. Non-probate estate assets include:

    Property held in joint tenancy
  • Retirement accounts
  • Life insurance or brokerage accounts listing someone other than the deceased person as beneficiary
  • Property held in living trusts
  • Jointly-held bank or brokerage accounts
  • Bank or brokerage accounts with “transfer on death” or “payable on death” designations
  • How Do I Know Whether To Apply For Formal Or Informal Probate? Can My Application For Informal Probate Be Denied?

    Formal probate is continuously Court-supervised, while informal probate is not, and is overseen by a probate registrar. The majority of estates go through informal probate, but there are instances where estates are ineligible and must be subjected to the more formal process. An estate goes through formal administration if:

  • An interested party to the estate requests it
  • The deceased person mandated formal probate in their last will and testament, especially in cases where the person named as personal representative in the will is unfit or unwilling to serve
  • The interested parties have a contentious relationship that could lead to significant disagreements about entitlement to assets
  • The person died intestate, and all interested parties to the estate do not agree in writing to informal administration
  • At any time before the application for probate is filed, any interested party may submit a written request that an estate undergo formal administration, and the Court will consider the request when determining whether the estate should be subjected to formal or informal administration.

    Can I Avoid Probate?

    While all estates worth $50,000 or more are typically required to undergo probate in Wisconsin, there are several ways that a person might structure their asset holdings so as to reduce the time and money spent on estate administration in Wisconsin, or to eliminate the need for probate entirely.

    One such way is though joint ownership, whereby assets are held collectively with another person, such as a spouse or child. When one owner of a jointly-held asset dies, their holding share is automatically transferred to the surviving owner, who is now considered the sole owner of the asset. Because the asset now has a sole owner who is still living, it is not subjected to probate.

    Another way to avoid administration of an asset is by holding it in a revocable living trust. Because the trust is revocable, the trust creator (grantor) maintains control over the assets in the trust until their death, at which point the property in the trust are distributed to beneficiaries as the grantor intended. Beneficiaries may be named when the trust is established, or the grantor can choose to leave the trust unfunded for a period of time and name beneficiaries whenever they choose to fund the trust. Grantors may also dictate other terms of revocable living trusts as well, enabling them to maintain a high degree over who is to receive assets and when. Property held in revocable living trusts is not subjected to probate, as it will pass to a clear owner, the beneficiary, after the grantor’s death.

    As in revocable living trusts, naming beneficiaries for eligible assets enables them to bypass estate administration. Many asset holdings, including bank accounts, retirement accounts, and life insurance policies, allow owners to name beneficiaries who will receive the property upon the original owner’s death or at another specified time. Assets with named beneficiaries do not go through probate.

    Payable on Death (POD) Accounts also do not undergo probate. Also called Totten Trusts, POD accounts are relatively simple to establish, and name beneficiaries for bank accounts or certificates of deposit (CDs). POD arrangements can allow large amounts of assets to avoid probate, as, when the account holder dies, all of the assets in the account transfer to the beneficiary.

    While probate can be expensive and time-consuming, there are many ways to shorten it or eliminate the need for it entirely. A qualified attorney can help to establish a plan to exempt as many of your assets as possible from estate administration so that more of what you work hard for goes to your loved ones upon your death.

    How Much Does Probate Cost? How Long Does It Take?

    The cost of estate administration in Wisconsin is highly variable depending on the complexity of the estate and of the relationships between interested parties. Generally, probate expenses, such as attorney’s fees and filing fees, total between 2% and 5% of the estate’s value. The costs associated with administration, including any expenses incurred before an application for probate was approved, are most often paid for by the estate.

    The duration of probate also depends heavily on the estate’s complexity. While Wisconsin statutes dictate that probate should be completed within 18 months, with some counties’ ordinances seek to reduce that time to 12 months, it is not uncommon for personal representatives to file for an extension of the time needed for administration of an estate. Even if parties are cooperative, probate of an estate is often more intricate than it initially appears, and more time may be required to inventory assets, pay creditors, and liquidate and transfer assets to heirs.

    Although the cost and duration of an estate administration is not easily estimated, consulting with an attorney even when the estate is undergoing informal probate can greatly reduce both the associated expense and the time commitment required.

    What is A Will Contest?

    A will contest occurs when someone challenges or seeks to overturn the content of a last will and testament. In order to contest a will in Wisconsin, the Court mandates that a person must have significant standing to do so. Namely, a person or entity with standing is a beneficiary named in the current version of a will, or was a named beneficiary in previous will but has since been left out of the current version. Another situation that would give someone grounds to contest a will is if someone has a familial connection with the testator that would have entitled them to a share of the estate’s assets under state intestacy laws had there not been a will drafted, but the person was excluded from inheritance in the existing will. In some cases, the Court may rule to grant standing to someone who would otherwise not have it given sufficient cause to do so.

    Those with standing may contest a will at any time before estate administration begins. Although a will may be challenged after probate has begun, this process is significantly more difficult. Someone wishing to contest a will must file a lawsuit with the probate court in the county where the probate will occur. While this can be done without an attorney, seeking counsel for assistance contesting a will is highly encouraged. Challenging an existing will requires sufficient argument and evidentiary support, and an attorney can review the will and verify grounds for contest before helping to build a compelling case to greatly increase the likelihood of success.

    Seeking counsel to review the will before filing to challenge it may also save time and money on legal fees should a no-contest clause be discovered. Also known as penalty clauses or in terrorem clauses, no-contest clauses do not totally prevent beneficiaries from contesting a will, they provide strong incentive not to do so. Someone who unsuccessfully challenges a will containing an in terrorem clause forfeits the inheritance that they would have received in the will had they not challenged it. In common terms, a penalty clause is something of an all or nothing bet that beneficiaries can make. If they are successful in challenging the will, they could receive a bigger share of the inheritance than they would have otherwise, but if the Court does not agree that the beneficiary is entitled to more than what is intended for them, they walk away with no inheritance, and may even be worse off due to attorney’s fees and filing fees incurred during the contest process.

    Do I Need To Hire An Attorney To Administer My Relative's Estate?

    Even if an estate is eligible for informal probate, seeking an attorney to oversee the process is beneficial. Probate is a complex legal process that is often more involved than it seems at the outset, even if the interested parties are cooperative. Probate attorneys are well-versed in aspects of the probate process that might not be obvious, and can work with the deceased person’s family, creditors, and the Court or probate registrar to ensure that the estate administration process goes as smoothly as possible. Navigating probate without counsel can easily lead to more expenses, time commitment, and stress during an already emotional time. Even when their supervision is not required, relying on an attorney to assist in administering an estate efficiently allows families to spend more time fondly remembering the person who died, sharing happy memories, and cherishing time spent together.