In Wisconsin, probate is the term that is used to describe the legal process during which the will of a decedent is validated and the estate of a decedent is settled. Outstanding issues such as paying the decedent’s debts and distributing their property are cared for by the estate’s personal representative under the supervision of the probate court. During the process of probate and administering the estate, disputes sometimes develop. If the parties cannot settle the dispute by negotiation outside of court, the parties will be required to litigate the issues in dispute before a probate court judge. While there are many issues that can lead to probate disputes, common issues include will challenges, fiduciary disputes, and the spouse’s elective share under Wis. Stat. Ann. § 861.01.
Wisconsin Will Contest
One of the primary purposes of probate is validating the will. If the decedent left a will, their probate property cannot be distributed unless the will is probated. Wis. Stat. Ann. § 856.13. The probate process is initiated when the personal representative files the decedent’s will along with a petition for probate with the clerk of the circuit court (the probate court) in the county in which the decedent resided at the time of their death.
If someone does not believe the will should be probated, they can file an objection challenging its validity. This is referred to as a will contest. Only interested parties have the legal right to contest a will. Generally, this would include those who are legally entitled to inherit under Wisconsin’s laws of intestate succession, those who are named as beneficiaries of the current will or a prior will, or trustees or beneficiaries of trusts created by the will. Wis. Stat. Ann. § 851.21.
In addition to the objectant having legal standing, the objectant must also have legal grounds, including:
- Improper execution
- Lack of testamentary capacity
- Undue influence
If the court concludes that the will is not valid, it will not admit it to probate. Instead, the court will probate a prior valid will, if any. Otherwise, the estate will be intestate, and Wisconsin’s law of intestate succession will apply. Wis. Stat. Ann. § 852.01.
Note that while Wisconsin law permits “no contest” clauses, there are limitations. Wis. Stat. Ann. § 854.19. A “no contest” clause is a term in a will that disinherits a beneficiary who challenges the will. A court will not uphold a no contest clause if it finds that the objectant has probable cause for initiating the will contest.
Wisconsin Fiduciary Litigation
A fiduciary is a person who is entrusted to care for the interests of someone else. They are expected to act in good faith and honesty. With respect to an estate, fiduciaries may include the personal representative, trustees, guardians, attorneys, and accountants.
Disputes relating to a fiduciary may develop if an interested party believes that the fiduciary has handled their responsibilities negligently, dishonestly, or with interests other than the estate or beneficiaries in mind.
Common fiduciary litigation issues center on:
- Objection to the final accounting
- Removal of fiduciary due to malfeasance or ineligibility
- Contested guardianships
- Fee disputes
- Prudent investment issues and management of estate or trust property
Spouse’s Elective Share in Wisconsin
Under Wisconsin law, a surviving spouse has the right to claim up to 50% of the decedent’s augmented deferred marital property estate. The augmented deferred marital property estate is based on the total amount of all deferred marital property in the marriage. Wis. Stat. § 861.02. If the personal representative and the surviving spouse disagree over what the surviving spouse is entitled to, the probate court would have to settle the dispute.
Impact of Probate Disputes
Generally, probate disputes that result in litigation will cause a delay in the process and lengthen the time frame for when asset distribution can occur. Probate disputes may also impact the amount of assets in the estate available for distribution as expenses related to litigating the dispute may have to be paid out of the estate assets. Depending on the type of dispute, it can impact who is entitled to inherit, who serves as fiduciary, and how assets are distributed.