Before the assets from the estate of a decedent can be passed on to those legally entitled, the probate court must give approval. In Wisconsin, probate is governed by Wisconsin Probate Statute- Wis. Stat. Ann. § 851.002 et seq. An important aspect of probate is proving that the decedent’s will meets the legal requirements, but there are several other steps in the process. The ultimate goal is to settle the estate by paying its debts and distributing its assets.
In Wisconsin, in order to initiate a probate case, a petition must be submitted to the probate court which is the Circuit Court located in the county where the decedent was a resident. The will must be submitted along with the petition. The court will review the will for validity. At this point, anyone who has an interest in the will and does not believe the submitted will meets the legal requirements can try to prevent it from being probated by initiating a challenge.
The court is obligated to address the challenge by listening to arguments as to why the will should not be probated. If the will is determined to be valid, it will be admitted to probate. In addition, the personal representative will be appointed by the Circuit Court. The duties and responsibilities of the personal representative include caring for the tasks necessary to settle to decedent’s estate.
They must pay estate bills. To do so, they must first determine the value of the assets in the estate by identifying them and appraising them. Creditors will be notified and will be given 3-4 months to file claims. The personal representative will review each claim to confirm that it is valid and pay all substantiated claims. The personal representative should reject unsubstantiated claims. This may result in a claimant initiating probate litigation in attempt to force the estate to pay the claim.
After the financial obligations of the estate have been met, the personal representative can distribute the remaining property to the decedent’s beneficiaries and heirs. The decedent’s will directs the personal representative as to who gets the various assets in their estate. If there is no will, Wisconsin law defines who is entitled to inherit.
There are special, expedited procedures available to small estates. In fact, under the Transfer by Affidavit process, under limited circumstances assets in small estates can be transfer to the beneficiary of heir without having to go through probate at all. This procedure is only available if the estate has assets with a value of $50,000 or less. Wis. Stat. Ann. § 867.03. There is also a simplified probate procedure for small estates called Summary Settlement of Small Estates. Wis. Stat. Ann. § 867.01.
Probate litigation occurs when the court is required to resolve a dispute involving the parties to the estate proceeding. Common probate disputes that result in litigation include arguments over the will’s validity resulting in will contest litigation. For example, if a disinherit relative believes that another family member illegally influenced the testator’s decision to disinherit them, they have the right to challenge the will and present evidence to the court. Fights between the personal representative and beneficiaries often must be settled in court. There have even been cases where the issue of right to inherit had to be settled by litigation.
Regardless of the reason for the litigation, it will impact the process by slowing it down and by adding expense.
Another aspect of probate law is handling estates of decedents who die without wills. When this happens, the estate still must go through a court-supervised estate administration process, but the law of intestate succession applies. Wis. Stat. Ann. § 852.01. This means that instead of the assets being distributed to their beneficiaries as described in their will, assets are distributed to the decedent’s legal heirs as defined by the statute. For example, if the decedent was survived by the spouse, they would be entitled to inherit.