Guidance Through The Probate Process
Some believe that the person who dies with most toys wins. Others point out that we can’t take our property with us when we die. No matter which of these beliefs you may adhere to, it’s unavoidable that those who die still owning property need to have a process to transfer their belongings to the living. This process is called probate.
The first step in this process is to create what is called the “probate estate.” This is done through filing an application notifying the court of the death of person and individuals who are interested in the process. This is also the time when the deceased’s Will is submitted to the Court and validated. If you suffer a medical setback and become comatose, your spouse, children or other loved ones may struggle to make decisions about what medical steps to take to keep you alive. You may have definite thoughts on what end-of-life medical care you want taken, but unless they are spelled out in legal documents, following your decisions may not be possible.
If you do not establish a health care directive and designate someone to have durable power of attorney for financial decisions, your loved ones may have to navigate complex legal proceedings to accomplish basic tasks on your behalf. Putting these documents in place assures that your loved ones will have clear directions on your wishes, so they can make decisions easily and with a clear conscience.
If there is no Will, the assets will be distributed according to Wisconsin intestacy laws.
Wisconsin’s Types of Probate Proceedings Include:
- Summary settlement- is for estates valued at less than $50,000. A special administrator may be summoned to manage the decedent’s estate if deemed necessary by the court. This individual’s duties might include administering assets or overseeing the estate.
- Informal administration- does not require continuous court supervision when determining the distribution of a decedent’s estate. It is instead supervised by a Probate Registrar. Informal administration is a common form of probate in Wisconsin.
- Formal administration- requires formal circuit court supervision. It is necessary when some beneficiaries do not consent to informal administration, or when disputes regarding the will arise between beneficiaries. A probate judge must rule these disputes. If disputes arise during informal administration, beneficiaries must turn to the formal administration process.
Once the probate process is started, an individual is appointed by the Court to manage and administer to the probate estate. This individual is called the “Personal Representative,” although many also refer to the position as the executor. The Personal Representative will gather the assets and inventory them, notify creditors of the probate and deal with any claims made, liquidate assets as necessary and distribute money and property to the beneficiaries of the estate.
An Alternative for Smaller Estates
Transfer by Affidavit is an alternative process for estates valued at $50,000 or less, and avoids court proceedings. A Transfer by Affidavit is submitted to initiate the process of beneficiaries collecting the decedent’s assets. The Transfer by Affidavit process might be viewed as an advantage due to the fact that it occurs outside of probate. However, it does not grant you a trustee or personal representative, leading to your beneficiaries becoming co-owners of your estate. This could result in disputes over the division of your assets.
Probate is a Tool
Probate should not be viewed as a nuisance, but rather as a mechanism to guide you through a tough and uncertain time. The probate process poses as an aid to ensure assets are distributed in the manner your loved one would have hoped for, in order to finalize their wishes.
The estate planning lawyers at Peterson, Berk & Cross, S.C., help personal representatives navigate the probate process. We also protect the interests of other beneficiaries and represent clients in disputes regarding estate administration.
Not all Assets Pass Through Probate
Most wills designate a family member or trusted friend of the decedent as a personal representative or executor. This person is charged with steering the decedent’s estate through probate.
It should be noted that a number of assets do not need to pass through probate. These include bank accounts, real estate, motor vehicles, life insurance policies, retirement accounts and other assets that were co-owned by the decedent and another person, such as a spouse.
In addition, trusts can be created while the person is alive that allow other assets to pass to heirs without going through probate. Many people wish to avoid the delays, costs and public nature of probate. We work with our clients to create estate plans that accomplish these objectives.
If probate is necessary, it can take several months to a year or more to complete depending upon the size of the estate, the complexity of the will and whether anyone contests the will.
Your Best Interests Are Our Priority
Our attorneys bring a personal approach to the probate process. We understand the emotions that family members are dealing with after the death of a loved one. We guide you through the process with an emphasis on efficiency and empathy.
Call 920-831-0300 or email us to schedule a consultation. We represent clients throughout Wisconsin from offices in Appleton and Green Bay.