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 go 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 the inventory is set, all debts are paid and the people entitled to the estate receive their share. Then a final accounting is filed with the court. The Personal Representative will name everyone who received the money and exactly how much. Additionally they show the inventory value coming in, all of the expenses paid and in the end, there should be nothing left in the estate. That is generally the last and largest part of proper estate accounting. Following the accounting, there are simply the closing documents to be dealt with where the judge or the court allows the Personal Representative to be released from their duties and then the probate is closed.
Is There More Than One Type Of Probate?
There are many types of probate but most commonly people are familiar with death probate. There is what is called a formal probate which has all the rules of extra notice given to everyone, additional documents which need to be filed in a formal probate and most importantly, everything happens in front of a judge. When there is no objection and no one has any problem with any part of the administration of the estate, we can use informal probate. Depending on the county in Wisconsin, an informal probate can all be handled through the mail.
Additionally there are other types of probate called special administration, where there may be one piece of property that needs to be dealt with outside of an informal or a formal probate. Something needs to be done without the formal appointment of a Personal Representative. Often these happen in cases where a “frozen” bank account needs to be accessed to pay a mortgage or taxes, or a safe deposit box needs to be opened to search for a will after the death of someone but before the Personal Representative could be appointed. The final type of probate is not really a probate at all but rather a transfer by affidavit; that is in cases with small estates. You can bypass the probate courts but you would have to have less than $50,000 in probate-able assets in order to utilize that simplified method.
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The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.
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