Articles Posted in Probate

When someone passes away with property titled out of state, transferring those assets to their rightful owner can become more complicated than what should be expected from a traditional probate process. If you have property titled out of state or are set to inherit property from another state, you may need to go through what is called ancillary probate and potentially require help from an out-of-state lawyer to complete the process.

If an out-of-state resident passes away and his or her last will and testament expresses intent to pass real estate in Wisconsin along to someone, it will be necessary for the administrator of the estate, as named in the will, to file probate in the Wisconsin county where the land is located. The executor will need to furnish the probate court with a copy of the decedent’s last will and testament as well as documents showing that the estate has been entered into the probate court of the testator’s state.

There are two ways that real estate owned by an out of state resident can be transferred without going through probate. The first is in the event that six years have elapsed since the deceased’s passing when a copy of the will and out state probate are used to secure a certificate of assignment to transfer the title without probate. The second, “no personal representative has been appointed in this (Wisconsin) state for the estate of any decedent who was not a resident of this state at the time of his or her death,” the county Circuit Court may appoint an executor to take control of the real estate.

The time it can take for an estate to pass through probate court in Wisconsin depends on many factors including the size of the estate, debts to be paid, and whether or not any interested parties contest the language of the deceased’s last will and testament. While there are any number of issues that may come up during probate, planning ahead and taking a few simple steps can help expedite the process as quickly as possible and ensure your heirs and beneficiaries receive their share of the estate.

Wisconsin probate laws require estates be closed within 18 months but some counties have even adopted ordinances aimed at reducing the amount of time to 12 months. If, for whatever reason, the executor cannot pass the estate through probate in time, he or she may ask the court for an extension for more time to perform the necessary duties to account for assets, liquidated holdings, and pay creditors if necessary.

For small estates with few assets and creditors, the process may take as little as six months if the executor in charge of the estate does his or her due diligence in cataloging assets and informing creditors about the deceased’s passing. Furthermore, the personal representative of the estate must file income tax returns for the deceased as well as income tax returns for any income earned by the estate after the decedent’s death.

Picking an executor to your estate is an important part of your estate planning process and should be done with a lot of thought and consideration about who is best to carry out your final wishes and ensure posthumous dispersal of your assets. Sometimes referred to as the “personal representative,” the executor is tasked with protecting your estate by settling debts, paying taxes, and ensuring assets are properly transferred to beneficiaries.

Executors have tremendous power over an estate and must make an assessment of all the deceased’s assets and debts and may even be able to sell of or liquidate property to help settle those debts. For those reasons and others, courts do set a standard all executors must meet and even leave open the possibility of the individual being excluded from serving as the personal representative altogether.

Wisconsin law only has two written requirements for persons to serve as executors of an estate, which are that the individual must be at least 18 years of age and be of sound mind. While some states exclude persons convicted of a felony from serving as the personal representative of an estate, Wisconsin places no such restrictions on the person assuming that role.

While Wisconsin courts try to move estates as quickly as possible through the probate process, some estates can take longer than others to gain the necessary approvals. If the probate court decides the estate needs to undergo formal probate, it could take much longer and become more costly.

Although not every estate can avoid undergoing formal probation, in most circumstances it should be unnecessary, especially if proper estate planning is done. By taking the time to sit down, think, and plan for the future, most folks can leave their estate is the best possible condition and avoid a long and distracting process.

Most estates in Wisconsin pass through the informal probate process with minimal supervision by a Probate Registrar in the county where the deceased lived. Also referred to as the Register in Probate, this office assists the judiciary and public by handling estates, guardianships, trusts and involuntary commitments.

Which Of These Powerful Secrets Could You Use To Build Your Ideal Estate Planning Legal Program

  • Keep your estate settlement simple;
  • Avoid the court-supervised Probate process when you die;

Are You Making Some of the Biggest Estate-Planning Mistakes?

There are some things we just don’t like to think about, much less speak about. The universal truth is we are all going to pass away one day. The legacy you leave can either simplify the process of dealing with your personal and financial property, or it can be a worrisome burden for those you leave behind.

Legacy planning is as important as your final wishes. So, as much as you avoid the topic, it can’t be — and shouldn’t be — ignored.

People often ask us to explain the difference between a revocable and an irrevocable trust. That’s a tough one because there are so many kinds of trusts and even irrevocable trusts can, within the Trust-300x225terms of the trust, allow certain things to be revoked or amended. But here’s our answer.

Most people who consider forming a trust like the concept of a “revocable” trust. The word “revocable” implies that you can amend, undo, change, alter, or revoke the trust. When someone hears that a trust is “irrevocable,” they often get concerned because that implies that things are rigid, fixed, inflexible, and control is lost.

The typical “avoid probate” trust is a revocable trust. There is no requirement that the typical “avoid probate” trust be irrevocable. Your home and other assets must simply be titled in the name of your trust when you die.

Not all of a deceased person’s property has to go through probate. If the property had a properly designated beneficiary, such as an insurance policy, an IRA or a 401(k), those do not go through probate.
Additionally, because of Wisconsin’s marital property law, everything owned jointly by a married couple easily transfers over to the surviving spouse. However, if real estate is only in the deceased spouse’s name there may need to be a probate. Continue reading

An affidavit of transfer is an alternative option to probate only when people have less than $50,000 in probateable assets, in other words, anything that would pass through the probate court. Typically that would include any real estate, bank accounts or other personal property which was held in the deceased person’s name. However, again the total of all assets would have to be under $50,000.

Another option for estates over $50,000 to avoid probate requires planning before the person passes away.

Another option to avoid probate is by creating a revocable trust and then transferring all of the assets into that trust. Upon doing so, if a person then dies, there would be no need for a court case. This is the best way for most people to plan their estates.

There are other less comprehensive and generally less advisable ways for specific assets to avoid probate. These include payable on death (POD) or transfer on death (TOD) designations on bank or investment accounts or real property. Assets held jointly with rights of survivorship will also transfer without probate if one joint owner dies and the other joint owner survives.

While there are many ways to avoid probate on specific assets as discussed, our attorney’s have some very serious concerns regarding planning estates with PODs and TODs and joint ownership. Often when people plan with these methods, they do not consider the interaction of different assets and the availability of assets to pay for things like funerals, real property taxes, mortgage payments, utilities, etc. after a person’s death. However, all of those can be protected by creating a living trust and transferring all of the assets into that trust in order to avoid probate.

Why Do People Generally Fear The Probate Process? Continue reading

The attorneys at Krause Donovan Estate Law Partners, LLC know the timelines of the probate process. They are able to work on matters so that as soon as one timeline is met, they start working on the next timeline. That allows them to get a probate done in the minimum amount of time because of their familiarity with the process. Additionally, in order to probatemake the probate process go as smoothly and quickly as possible, the attorneys at Krause Donovan Estate Law Partners, LLC always encourage the Personal Representative to be open and honest and with all beneficiaries so there is not anyone who is out there suspicious and worried. By just simply opening up the books and being very communicative, delays can sometimes be avoided that could be caused by people contacting the court and asking for information or creating a will contest because of a distrust. Additionally, the lawyers at Krause Donovan Estate Law Partners, LLC act as a buffer sometimes between factions of the family that don’t get along. If people who don’t really trust the Personal Representative can contact their firm instead sometimes that can make things go faster than if they are trying to get in touch with the Personal Representative who may be personally not a friend. Experienced attorneys can also help resolve disputes when they arise. Being able to calmly deal with family members as a person without a bias or history is often useful. Therefore, there are a lot of ways that an experienced attorney can speed up the probate process and make it less painful for those involved.

Continue reading