FREQUENTLY ASKED QUESTIONS - PROBATE
WHAT IS PROBATE:
Probate is a court-supervised process for the orderly transfer of a decedent’s assets to those who are entitled to them. The process ensures that notice is properly given, that all debts, taxes and expenses are paid, that the assets are distributed in accordance with a Will or to heirs as determined by statutes.
WHAT DO I DO WHEN SOMEONE DIES?
If the person who died had a Will, the original must be filed with the Register in Probate Office within 30 days of the date of death, even if no probate proceeding is required. Complete and file with the Register in Probate an Affidavit of No Probate form. If a probate proceeding will be initiated, file the original Will with the probate documents. If a person dies without a Will and has solely owned assets that must be transferred or assigned to heirs entitled to receive them, the statutes outline a priority system (called “intestate succession”) which determines how the decedent’s assets will be distributed.
WHAT IF THERE IS NO WILL? WHAT HAPPENS THEN?
If the decedent did not leave a Will and a probate is required, the rules of Intestate Succession apply. See Chapter 852 of the Wisconsin Statutes. If the decedent died having solely owned property, those assets must be probated and assigned to those heirs entitled to it by law.
WHO ARE THE HEIRS?
The heirs are the “closest living relatives” of a person as defined by Wisconsin Statutes. Heirs are entitled to notice of probate proceedings and will inherit all of the decedent’s assets if he or she did not leave a Will. The following list is a guide:
- Spouse, or spouse and children not of the current marriage (if any)
- Children (and descendants of any child who is deceased)
- Grandchildren (and descendants of a deceased grandchild)
- Sibling (and descendants of siblings who are deceased)
- Nieces and nephews (and descendants of those who are deceased)
WHO ARE BENEFICIARIES?
A beneficiary is any person, relative or non-relative, organization, charity or any other entity nominated in a Will to receive a specific interest or bequest from the decedent’s estate.
WHAT ARE SOME TYPES OF PROBATE PROCEDURES?
Formal Administration is a proceeding before a probate judge who presides and supervises the administration of the estate. Formal administration requires an attorney, and all issues are brought before the circuit judge.
Informal Administration is a proceeding that the probate registrar supervises without exercise of continuous supervision by the Court. In some cases, you do not need an attorney to proceed informally. Informal administration proceedings are circuit court proceedings under probate jurisdiction. For a guide to Informal Probate click here for additional information.
Summary Settlement proceeding can be used whenever there is a surviving spouse or minor children and the estate, less the amount of the debts for which any property is security, does not exceed $50,000. It may also be used whenever the value of the estate does not exceed the priority debts (e.g., taxes, administrative, funeral and burial, last illness, spousal and family allowances). For a guide to Summary Settlement click here for additional information.
Summary Assignment can be used whenever the value of the estate, less the amount of the debts for which any property is security, does not exceed $50,000 and summary settlement does not apply. For a guide to Summary Assignment click here additional information.
WHAT IF THE DECEDENT OWNED LESS THAN $50,000.00 IN ASSETS?
When a person dies leaving property that does not exceed $50,000 in value, the property may be assigned to an heir-at-law by use of the Transfer by Affidavit form (sometimes referred to as a small estate affidavit). Form PR-1831 Transfer by Affidavit ($50,000 and under) can be found at http://wicourts.gov/forms/PR-1831.doc or can be obtained from the Register in Probate office. A guideline is available through this link together with an Affidavit of No Probate form. If the Transfer by Affidavit form is used and the decedent had a Will, the original Will, along with the Affidavit of No Probate must be filed with the Probate Office. A guideline for the affidavit is available through this link.
If the decedent received some sort of medical assistance (through the State of Wisconsin, and not Medicare), additional information may be found at: http://dhfs.wisconsin.gov/medicaid1/recpubs/erp/phc13032.htm.
DO I NEED A LAWYER?
While Wisconsin statutes do not require you to hire an attorney to probate an estate informally or by summary procedure, you may seek advice or the services of an attorney at any point during the process. A lawyer is required in Formal Probate proceedings.
It is important for you to remember the Register in Probate cannot give you legal advice. A Register’s role is to guide you, NOT advise you. Any legal questions or issues you may have will require you to consult with an attorney.
WHAT DOES A PERSONAL REPRESENTATIVE DO?
The Personal Representative (PR) is the person nominated to administer the decedent’s assets in an Informal or Formal proceeding. The PR cannot assume the duties until the Court appoints the PR. Duties and responsibilities include making an inventory of and managing the decedent's property; paying debts, administrative expenses, and taxes; and distributing the property to the heirs or beneficiaries. The PR has the duty to protect the property of the estate, administer and distribute estate assets in a diligent and timely manner according to statutory deadlines, and file any required tax returns for the decedent.
HOW DO I GET A DOMICILIARY LETTER?
Domiciliary Letters are issued by the Probate Court either upon the filing of all required documents with the Probate Registrar for an informal proceeding, or after a hearing before the Circuit Judge in a formal proceeding. The Domiciliary Letters shows that the probate court has given the authority to the named personal representative to act on behalf of the decedent’s estate and to perform all duties required to administer the estate according to statute.
Please note that even though a person is nominated in a decedent’s Will as personal representative, they do not have the authority to act until it has been granted to them by the Probate Court.
HOW LONG DOES PROBATE TAKE?
Wisconsin Statutes require all estates to be settled as soon as reasonably possible and without unnecessary delay. The 10th Judicial District Circuit Court Judges (which includes Polk County) has set twelve (12) months as the benchmark for disposing of probate cases. Some cases, due to complexity or contested issues, may take longer. Generally, most probate matters are closed between 6 to 12 months.
HOW CAN I ACCESS STANDARD COURT FORMS?
Standard, statewide forms are required by all Wisconsin Circuit Courts. Forms can be obtained in person from the Register in Probate office; or Forms can be obtained online at www.wicourts.gov/forms1/circuit.htm
HOW DO I FILE A CLAIM AGAINST AN ESTATE?
There is a $3 filing fee to file a claim against an estate. Form PR-1819 Claim Against Estate is available online at http://wicourts.gov/forms1/circuit.htm#probate or in person from the Register in Probate office. There is a time limit for filing a claim based on when the probate action was started. You can check the court file in person or review the case record on the internet at: http://wcca.wicourts.gov/index.xsl to find out the claims deadline for a particular case.