Probate

Probate is the legal process of administering the estate of a deceased person. When a loved one has passed on, the probate procedure is probably the last thing on their family’s mind; however, probate is often a necessary process to ensure that the estate assets are properly transferred to the legal heirs and devisees. The attorneys at Slaby Deda Law Offices have the sensitivity and legal know-how to help you through this difficult time. Probate may be necessary if someone has passed away with significant assets that need to be transferred to others. Probate is the procedure used whether a person dies with a will (testate) or without a will (intestate). Only assets owned solely by the deceased need be probated. Some people plan their estate in such a way as to avoid probate, such as by transferring their property into a revocable living trust, in joint ownership, or by making their accounts payable on death (P.O.D.).  However, probate is sometimes necessary for transfer of assets.  If probate is necessary and is not used, the assets of the deceased may be wasted or transferred improperly. If you are not sure whether probate is a necessary court process in your particular case, please call for an initial consultation and one of our attorneys can advise you. A “personal representative” is a person who will oversee the probate of the estate. Sometimes they are also called executors. If a person dies with a will, a personal representative will usually be named in that document. A personal representative is normally a family member of the deceased. The duties of the personal representative include paying the debts of the deceased in an economical manner, managing the assets of the deceased until they can be distributed, and ensuring all beneficiaries receive their fair share of the property. A personal representative may charge the estate (or assets of the deceased) a fee for the work done. If a personal representative is having difficulty wading through the probate laws, they may choose to hire an attorney to help them through the process. The fees of the attorney hired to assist the personal representative would also be paid out of the estate. “Beneficiaries” are the people who will receive property from the deceased under a will. Beneficiaries are usually not represented in a probate proceeding, but some beneficiaries choose to hire their own attorney (an attorney different from the probate attorney of the personal representative) if they feel the personal representative is doing things unfairly. “Heirs” are those who will receive property from the deceased without a will. Wisconsin has a statute that clearly defines what relationship a person has to be with a deceased person to receive property from that person when they pass on. For instance, the property would first go to the spouse of the deceased, the children or grandchildren if there is no spouse, and then to other blood relatives. There are many tax implications to a probate. There may be income taxes on any income made by the estate from the time of death until the completion of probate (such as return on investments). There may also be estate tax due, depending on each person’s individual situation and the current federal tax laws. There are two statutory types of probate in Wisconsin: formal and informal. Both procedures have their pros and cons, and one procedure will be best for each particular situation. Informal Informal probate is the most common probate administration method, as it is usually faster and thereby more economical.  Instead of being administered by a probate judge, informal probate is administered by the register in probate. Once the probate process is started, there are many pleadings that must be filed. Creditors must be notified of the proceedings, potential heirs must be notified, etc. Formal Though formal probate involves more court involvement, it is necessary in certain situations. If the beneficiaries are contesting a will, there are more debts than there are assets, or if there are problems with getting a personal representative appointed, formal probate may be the only option, as a probate judge will need to rule on these matters. Please call 1-800-543-6440 for a consultation to speak with a probate attorney.