Probate Process

Wisconsin law provides that the Personal Representative gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.

Being a Personal Representative is a big responsibility. Wisconsin’s probate code contains pages upon pages of complex legal rules and procedures that a Personal Representative must follow during the probate. Also, there are certain deadlines that a Personal Representative must meet in filing papers with the Court. If a Personal Representative violates any of these rules, they can be held personally liable for losses to the estate.

In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.

Unfortunately, many people who have a Trust think they have it all taken care of.  But time and again, family members of a recently passed loved one come into my office and they find out they are facing the frustration, expense, and delay of probate, even though the person they loved had a trust.

Why is that?

Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust.  That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.

It’s why we do things so much differently than most other lawyers and law firms, here at Flores Legal Group.

Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.  Talk to an attorney if you have questions about your specific situation.

If there is no will or trust, the estate will be distributed according to Wisconsin probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).

The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.

The Personal Representative is entitled to be paid a fee for their services.  Any fees paid to a Personal Representative must be approved by the Probate court.  The Probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs, filing fees, document certification and recording fees as well as property appraisal fees to name a few. In total, fees for a probate matter in Wisconsin are 5% of the total value of an estate. Accordingly, if an estate is worth $500,000.00, the total probate costs and fees will be approximately $25,000.00

The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.

You don’t have to use the attorney who prepared the Will either!  Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process. Contact us to get started!