staff When someone dies, their assets may require probate. These are called individually-owned assets, including property like houses or cars and investment or bank accounts.
Some assets avoid probate altogether, including those held jointly with a spouse, payable on death accounts at banks or brokerage firms, and trust assets. However, many estates require probate to settle the estate.
Informal Probate
Probate is the court-supervised process where a will or the laws of intestacy are verified, and assets still titled in the name of the deceased are distributed according to their wishes (if there was a Will) or the law of intestacy if there was no Will. There are two types of formal probate: supervised and unsupervised. The supervised administration requires probate court review and approval throughout the estate’s administration. The PR in charge must obtain a judge’s permission for many activities.
Informal probate, as one of the different types of probate processes, is less complicated and takes less time than a formal administration. However, it can be more contentious and needs more finality gained by the legal proceedings. In addition, any beneficiary may withdraw from informal probate and demand formal probate with official supervision at any point in the process.
An individual wishing to open informal probate can file the appropriate paperwork with the local court in the county where the deceased resided at death. A court employee called a “probate registrar” will then review the application and hold a telephone conference with the applicant to discuss the application. The registrar will either approve the informal probate or point out any issues that must be corrected. The informal probate can be used in both testate and intestate cases. Our attorneys are familiar with the probate processes in Wisconsin and can assist you with opening your estate.
Summary Probate
The estate of a deceased person must pass through probate before being distributed to the beneficiaries. The only way to avoid this is to draft a will that names a personal representative or transfer assets into a joint tenancy or payable-on-death bank account that automatically passes to a beneficiary upon the owner’s death. However, even these steps only sometimes avoid probate.
Using a summary administration, the estate executor (or a surviving family member if there is no will) files a petition with the court. This must be done within a specific time of the death and should include the estate’s value, a list of known creditors and beneficiaries/heirs, and a copy of the deceased’s will (if there is one).
This starts the process, but the court must wait for any potential creditors to file a claim against the estate. Once this period has passed, the assets can be distributed to heirs. The final step is to pay any estate taxes and debts, and then the court must close the case.
It is important to note that for a summary administration to work, the beneficiaries/heirs must have perfect knowledge of the deceased’s assets. This is why the affidavit must include the value and number of all assets. Also, if the dead has any existing creditors, summary administration might not be the best vehicle.
Contested Probate
An individual can contest the validity of someone’s will for several reasons. They may believe that the choice doesn’t reflect what the deceased wanted or that the estate is being mismanaged. They might also think that the person who drafted the will was exerting undue influence or did not have mental capacity when they signed it.
However, an interested party must have legal standing to challenge a will in court. This means they must have a direct economic interest in the case’s outcome. This includes beneficiaries and people who would have received property under state law if the deceased had died without a will.
When someone wants to challenge a will, they must file a caveat with the county surrogate’s office. This formal notice prevents the approval and legal admission of a will to probate. The objecting party must then present their grounds for contesting the will to the court, which is done through a petition.
Individuals can use evidence such as medical records, witness testimony, and expert opinions during the contest to prove their claims. A successful match can result in the revocation of the will and the appointment of an administrator to manage the estate.
Final Probate
When a person dies, they often leave behind established documentation that provides instructions on how their assets will be distributed. This documentation is called a will. Sometimes, the deceased does not leave a will called dying intestate. In both situations, probate must be completed to determine inheritors and distribute the estate.
The process begins when the executor named in the will (or, if there is no will, a person interested in handling the estate) files a petition for probate with the Surrogate’s Court. Once this is done, the court will formally notify everyone involved in the proceeding, including beneficiaries and heirs.
If the will is not contested, this portion of the probate process typically moves forward quickly. The next step involves collecting the deceased’s final assets and paying any remaining debts. This can include real property titled solely in the decedent’s name, individually held savings and checking accounts, personal property like cars or jewelry, and other assets.
If there are outstanding bills, taxes, or mortgages, they must be paid. Once any outstanding debts are settled, the estate can be finalized, and the remaining assets distributed to the beneficiaries. This requires a thorough and accurate probate accounting to ensure that all transactions were made following the law. If a beneficiary believes there are discrepancies in the final accounting, they can file an objection with the court.
