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At some point, you will likely be required to deal with a Wisconsin probate if you are a resident of Wisconsin or if you have family there. Wisconsin probate law can be confusing at times, but thankfully there are several resources available to assist you in the process. If the estate is larger, over $50,000 in net value, it is a good idea to at least consult with an experienced Wisconsin probate law attorney because an attorney is required for a formal administration. If you think that there may be challenges to the validity of the will that is to be probated or the deceased's estate is large and relatively complex, you should also consult with an attorney to make sure that your friend or family member's last wishes are properly carried out. Read on to learn more about Wisconsin probate law and any changes in 2023.  

Signing of contract

Wisconsin probate law

Probate is the area of law for each state devoted to ensuring the correct and orderly process of verifying the validity of and carrying out the terms of a will.  

A person either has a will that needs to be probated, or they pass away intestate. Intestate is simply the term used when a person passes away without a will. If a person passes away intestate in Wisconsin, the court will look at the family relationships with the deceased to disburse the person's remaining assets. Usually, if there is a surviving spouse, the assets will go to that spouse. If there is no spouse, the estate will be divided between the children of the deceased. If there is no spouse or children, it will go to the deceased's parents. If the deceased has none of the previously listed relations, the court will look for siblings, nieces or nephews, or grandparents. If none of these family members exist, the estate will go to the State of Wisconsin.  

In Wisconsin, the probate court handles all issues related to probating a will. The probate process is initiated by the personal representative filing a petition with the probate court to validate a will.    

In Wisconsin, the law allows for either formal or informal probate, depending on the size of the estate to be probated. Probate in Wisconsin requires that a personal representative be appointed, either by the terms of the actual will document or by the probate court. The personal representative is typically a family member or close friend who is familiar with the deceased and will be able to assist in carrying out their last wishes in the manner they desire.  

The personal representative will identify and administer the estate's assets during the probate process, make sure the required taxes are paid, pay debts and claims on the estate, make any required distributions and determine the surviving spouse's rights, if any, under state law. These are just a few of the duties that the personal representative must fulfil.  

Spousal rights

Wisconsin Estate Administration

Informal administration of an estate in Wisconsin is anything $50,000 in value or under. If the will is challenged, it will have to become a formal administration where the probate court decides on the issues. Milwaukee County requires a personal representative to appear in person for the first hearing on an informal administration. Still, otherwise, almost the entire process can be handled through the mail and costs less overall.  

The formal administration of an estate in Wisconsin is anything over $50,000 in value. An attorney must be hired and represent the personal representative for a formal probate administration. The personal representative can select the attorney. The attorney can charge a fixed flat fee for the work or charge by the hour, but the attorney cannot charge an amount based on a percentage of the estate's value.  

Will Challenges in Wisconsin Probate

If there is a challenge to the validity of a will, there will have to be formal administration, and the personal representative should hire an attorney. There are three significant challenges to a will that can be made by anyone withstanding.  

In order to have the standing to challenge the validity of a will, you must either be a named beneficiary in the current will or a named beneficiary in a previous version of the will but left out of the current will. In rare cases, the probate court may elect to grant standing to a party never named as a beneficiary, such as an ex-spouse or distant relative. There are three main reasons a will might be challenged in the probate court:  

  1. Lack of proper formation-for example, the will was not properly witnessed.
  2. Lack of capacity-for example, the person did not understand that they were creating a will and the subsequent consequences of the document.
  3. Undue influence-the person who created the will was at the mercy of a full-time caretaker who pushed the person for changes the person did not want to make to the will.
Couple reviewing documents

Changes to Wisconsin Probate Law in 2023

There have been no substantive changes made to Wisconsin probate law in 2023. There have been some adjustments to estate and inheritance taxes. You should check the local rules and forms for whatever county your probate matter is in case there have been changes to the local procedure if you are self-representing. If you hire an attorney to assist with your probate matter, they will be aware of any changes or updates to the local rules. An important takeaway from this article is that you should always stay on top of your estate planning. Often, people create a will and neglect to update it when they experience significant life changes. Some examples of significant life changes are getting married, having a child or additional children, and receiving a large inheritance that will impact your overall financial status.  

Dealing with the estate of a friend or loved one can be a challenging time in your life. Ultimately there is a great deal of stress and emotion that can be involved for all parties concerned. If you have questions or concerns regarding planning for your family's future after you are gone, Wisconsin probate law, or Wisconsin estate administration in 2023, please give O'Flaherty Law a call. We would be happy to assist you in the process.  

June 6, 2022
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