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Understanding the Probate Process

When someone passes away in Wisconsin or elsewhere, that person’s estate typically must be distributed through a process called probate. If a relative or loved one recently died, it can be helpful to understand the process. You may want some assistance throughout the probate process from an experienced Wisconsin probate attorney.

What is Probate?

Probate is a court-supervised process in which the assets of a decedent are distributed. The procedure distributes property to the beneficiaries and also provides payments for outstanding debts and pays appropriate taxes. A person’s estate is defined as all of his or her property and assets. Any estate in Wisconsin that is valued at more than $50,000 must go through the probate process unless it is subject to an exemption.

The probate process is handled by the personal representative, also known as the executor, assigned by the decedent in the will. If the decedent did not choose an executor, then the court will appoint a trust company, financial institution or close relative to handle the probate process.

What Types of Probate are Used in Wisconsin?

There are two main types of probate that may be utilized in the process of resolving a person’s affairs after death. These include formal probate and informal probate. In addition, the law may not require probate in some situations. In that case, the property may be transferred by affidavit or assigned. In cases in which the estate is worth less than $50,000 the administration can be done through a simplified process called a summary settlement.

Formal probate is overseen by a judge. The formal probate process is required whenever there is a dispute, and in formal probate you need to be represented by an attorney. In general, the probate costs are paid for by the estate. The informal probate process is administered independently, although you may have an attorney assist in the procedure.

How Soon Must Probate Take Place?

In Wisconsin, probate typically takes place within six months of the person’s death. However, the law allows up to 18 months for probate unless an extension is granted. The process allows time for the creditors to be notified and for any taxes to be filed.

Creditors may file a claim against the estate as long as they do so within four months of the probate notification. The costs associated with the decedent’s funeral and burial may be paid by the estate.

The probate hearing is the court process that finalizes the distribution of a decedent’s estate. It is advisable to have your attorney represent you through the process and at the probate hearing to ensure that your interests are protected and that distribution is completed in the manner intended.

Part or all of a person’s estate may be placed in a trust, which may not need to go through probate. Instead, the person’s assets are transferred in accordance with the terms of the trust. When someone dies without a will in place, that person’s estate will be distributed according to Wisconsin intestate laws. It is therefore best to have a will or trust in place to make sure that your estate is distributed per your wishes.

The probate process can be somewhat complex, so it is helpful to have representation from an experienced Wisconsin probate attorney. Contact Moen Sheehan Meyer, Ltd. to learn more about wills, trusts, and probate.

Published March 17, 2019
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