Articles Tagged with Probate

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For many Wisconsin residents, administering a parent or relative’s estate may be their first extended interaction with the legal system. If you find yourself in the position of a first-time personal representative or executor, you may wonder if it is even necessary to hire an experienced probate and trust administration lawyer. After all, if your relative’s estate only has a few assets–maybe nothing more than a house and a checking account–you can surely handle everything on your own and spare the expense of a lawyer, right?

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Court-HammerProbate administration is the legal process of distributing a deceased Wisconsin resident’s property in accordance with the terms of his or her will, or if there is no will, under the state’s intestacy laws. Probate is also when anyone to whom the deceased owed money can present claims for payment. This includes health care providers, credit card companies, and even family members of the deceased.

Court Dismisses Son’s “Frivolous” Lawsuits Against Mother’s Estat

Under Wisconsin law, a creditor may demand “formal proceedings” in probate court to resolve any disputed claim against the estate. Probate court is the proper place to resolve such issues. In other words, a family member or other creditor should not initiate civil litigation outside of the probate administration process.

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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.

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.

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.

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Probate obstacles can start with being able to locate and notify all “persons interested.” Everyone must be notified before the probate can begin. An investigation and special hearing would have to take place in order to have a probate move forward if not everyone has been made aware.

“Persons interested” are the people named in a will as beneficiaries, and the Personal Representative. But, the persons interested also include all people who would inherit if there were no will (according to the law of intestate succession). This means that even if a will was left that said “Everything goes to my sister Laura,” interested persons would include all of the people who would inherit if there were no will. This could be parents and all other siblings including any unknown half-siblings from a father who disappeared when the decedent was a small child. It could also include nieces, nephews and cousins.

probateAs you can see, when families are not close, or when a person is very old and the last surviving sibling, it is often difficult to trace a family tree and locate a missing interested person.

Another obstacle people may face in probate is the fact that the courts are located in the county seats. This can mean travel for some people who find travel difficult. Sometimes people are intimidated by going to the court in order to file documents or to figure out which documents need to be filed, etc.

A third barrier in the probate process is knowledge barrier. People need to know about the taxing of estates, court procedures, court processes and the probate process in order to make this happen smoothly. As many people go through probate only once in their lifetime for a loved one, they don’t have time to spend learning all of these particular pieces of knowledge that they need to know.

Lastly, is the fact that people who are dealing with these matters are probably not their best after they have lost a loved one. Sometimes they don’t have the patience or the time to deal with the intricacies involved in the probate process.

What Actually Happens During The Probate Process? Continue reading

Probate is a court case that one files against themselves on behalf of their creditors.

Here’s some history of probate: The way property passes upon ones death has gone through various stages over time. In the middle ages, there were certain rules set by the king that would say where the property was to go and that was not able to be changed with a will or a testament. People just had to deal with the fact that their property was going to probatego to certain people when they died. With the introduction of the will, one could choose where the property went, but there was a need to have supervision by the King’s court so that the sovereign could always keep track of where assets ended up. The probate process has developed from those ages to a process that still needs court involvement.

In probate, when someone dies, there is a court case opened and notices are sent to all people that could receive assets of the deceased person. This notice is an option and an invitation to contest any will that might be presented to the court. There is also a notice that is published in the newspaper for anyone that thinks that the deceased person owes them money to come forward and make a claim against the estate. As the claims come in and everyone is being notified, the Personal Representative (a.k.a. Executor) puts together an inventory of everything that the person owned at the time of their death. That information is filed with the court and becomes a public document. Therefore anyone can find out what the deceased person owned at the time of their death. After Continue reading