In this article...

In this article, we will answer questions regarding Wisconsin probate including: What is Probate?, Are heir and beneficiary the same thing?, If I have a will do I need probate? How long does probate take, how do you avoid probate in Wisconsin?, and Should I consult with a Wisconsin estate planning attorney?

Key Takeaways

Probate in Wisconsin (or any jurisdiction) can be a confusing process to those who have not been through it. Probate certainly isn’t of much interest to anyone other than estate attorneys and judges who handle probate. Eventually, however, the likelihood is high that you will have to either deal with the estate of a departed family member going through the probate process or discuss it with an estate attorney who is preparing your will.  

What is probate?

Simply put, probate is a court process that authenticates your Will, ensuring that it is a valid document,  and oversees the distribution of your estate in accordance with your Will.

Will or intestacy?  

If you want a say about how your estate is distributed after you pass away, you should absolutely have a Will, even if it is a short, simple document. If you pass away without a Will, your estate is “intestate” and it will be up to the court to decide how to distribute your property. Dealing with intestacy can be difficult and time consuming for all parties remaining. You can, and should, have a Will drafted and, depending on the complexity of your estate, it shouldn’t normally be a long process. Having a Will gives you and those who survive you peace of mind, knowing what your wishes are in regard to the distribution of the estate.  

Is probate required in Wisconsin?  

Probate is required in Wisconsin if you have a Will and an estate worth $50,000 or more. It is a statutory law in Wisconsin that a Will for an estate of $50,000 or more must be verified as authentic and distributions carried out in accordance with the terms of the Will. If the total value of your estate is under $50,000 then the estate does not need to be probated and can be settled without court involvement.  

How much does probate cost in Wisconsin?  

The cost for probate in Wisconsin varies depending on several factors. If the estate is complex and time consuming, probate will cost more. There will be filing fees and court costs, not to mention attorney fees for the probate attorney if one is needed. If there is an heir that challenges the validity of the Will, probate will cost more. Wisconsin state statute controls the Executor fees for your estate, which are generally around 2% of the value of the estate.  

How long after death do you have to file probate in Wisconsin?  

Generally, Wisconsin wants an estate to be probated within 18 months of death but it does vary by county. Some counties in Wisconsin want the estate to be probated within a year. Once the Will and petition are filed creditors have a three month window where they can file claims against the estate.  

Executor or Administrator?

Sometimes people confuse an executor with an administrator during the Wisconsin probate process. An executor is named in your Will to handle the distribution of your Will. An administrator is a person appointed for any other reason, for example the named executor(s) in your Will all predeceased you or if you pass on intestate with a sizeable estate, an administrator could be appointed to oversee distribution.  

Are heir and beneficiary the same thing?

An heir is a named person in your Will that is named as an heir and is a person, usually a relative, with a specific set of rights when your Will is being probated. A beneficiary is an entity, like a charity or other organization that you name a gift to out of your estate, for example if you left $2,000 to the American Red Cross the American Red Cross would be a beneficiary but could never be your heir.  

Do I need probate if I have a will?

Only if your estate is under the $50,000 threshold. If your estate is worth $50,000 or more your Will must go through probate.  

How long will probate take?

Probate can take anywhere from 6 months to a few years after the Will and petition are filed. It really all depends on the facts and circumstances surrounding the probate. If there are multiple creditors who need to prove their claims or if your heirs are fighting the Will. No specific time frame can be given.  

Will the bank release money before probate?  

If there is no designation on the bank account, the bank will not release money without a Grant of Probate. Sometimes bank accounts are “POD” or payable on death, or “TOD” which is transfer on death which means that probate does not need to be complete prior to funds being released, the funds will transfer automatically.

How do you avoid probate in Wisconsin?

There are people who actively want to avoid probate in Wisconsin. Naturally, it makes the reader ask, “Why is it good to avoid probate in Wisconsin?” Generally, they either don’t want the estate to have to pay for any of the fees and costs associated with probate or they just want to avoid the time it can take for probate to be completed. Whatever people’s reasons are for wanting to avoid probate, there are options to consider. Since this is an article about probate in Wisconsin, we will stick to generalities. Assets held by a trust do not get probated. “TOD” and POD” bank accounts do not get probated. Furthermore, “TOD” accounts cover a very broad range of financial assets. Finally, if you have any assets that allow you to designate a beneficiary, like a life insurance policy, that policy will not go through probate.  

Should I consult with a Wisconsin estate planning attorney?

If you want to have control over what happens to your estate after you pass away, then the answer is a resounding YES. No matter what the size of your estate is or what your ultimate goal you should at least meet with an estate planning attorney to discuss what your options are. A good estate planning attorney can assist you in making decisions that will assist your surviving family and friends after you pass away. While it is never easy to lose a family member, a solid estate plan that lays out exactly what you want after you are gone will be a final gift you can make to your loved ones.  

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Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
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