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Death Probate: What’s the Big Deal?

Horn & Johnsen SC > Horn & Johnsen News  > Death Probate: What’s the Big Deal?

Death Probate: What’s the Big Deal?

Many people often assume that, if they have a will, then there should be no need for a court proceeding upon death. After all, you spelled out all of your wishes in writing, and even signed your will at a lawyer’s office with witnesses and notaries, so why would a judge get involved?

In reality, if you die in Wisconsin owning assets titled solely in your name with a total value exceeding $50,000 (excluding assets with direct beneficiaries such as life insurance or retirement accounts), then these assets must go through the death probate process before they can be transferred to the beneficiaries named in your will or, if you don’t have a will, to your heirs-at law.

For example, let’s assume you die owning a parcel of real estate – your home – titled solely in your name. Let’s also assume you have three adult children, Sarah, Joe and Brett, and that Sarah is named as your personal representative (also known as an “executor”) in your will. Sarah will quickly discover that she is not even authorized to sign a contract hiring a Realtor until she has obtained a court order (in Wisconsin, this is referred to as “domiciliary letters” and sometimes referred to as “letters testamentary”) granting her the legal authority to represent your estate. The only way to obtain this court order is by initiating a death probate proceeding in the circuit court for the county in which you were a resident at the time of your death.

On average, a death proceeding in Wisconsin will last about a year. Sarah, as the personal representative, will be required to publish a notice in the newspaper notifying your potential creditors that they have approximately three months to file a claim against your estate. She will also be required to file an Inventory with the court providing details, including values, for every asset you owned that did not pass by virtue of direct beneficiary designations. In addition, the court will require an Inventory filing fee (calculated at $2 per $1,000, based on the total probate estate value) and, ultimately, a breakdown to the penny of all debts and expenses that were paid on behalf of your estate. Finally, after Sarah has filed all required notices, paid all debts and expenses (including attorney’s fees), handled all creditor claims, and filed all required tax returns, she can finally distribute your remaining probate estate to the beneficiaries named in your will.

Understandably, the death probate process can be quite frustrating for your loved ones even in the best of circumstances. However, the situation could be much worse if you did not leave sufficient cash to go through the probate process along with your real estate (how will Sarah pay for your expenses, including your funeral, for the attorney’s fees, and for the maintenance and upkeep of your real estate until it has been sold?) or if you have disinherited one of your children. Even if Brett is not included as a beneficiary in your will, Sarah will still have a legal duty to provide him with a copy of your will and an opportunity to object in court.

For many families, aside from the frustration of the court process itself, one of the most undesirable consequences is that information about your estate has now become a public record. If there was a death probate in Wisconsin, simply type in the deceased person’s name here (Consolidated Court Automation Programs, otherwise known as “CCAP”) to see the estate value and more.

If you wish to spare your loved ones the hassle, frustration and expense of a public probate proceeding upon your death, you should explore alternative estate planning strategies, such as a revocable living trust or a transfer on death deed.  Contact us today to set up your free initial consultation.

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