Basics of the Probate Process

What is probate? : Probate is the process of transferring property to another individual after death with court oversight. To this end, the court uses an organized process with many requirements to assure that property is passed properly and debts are paid.

How long does probate take? : In Wisconsin, for estates greater than $50,000, probate takes a minimum of three to four months from application to closing. This time is lengthened if there are claims against the estate, if a will is contested, or if there is a disagreement among beneficiaries regarding how assets should be managed. Average probate length can often be between 4 and 9 months.

​What property is included in probate? : In short, property included in probate is only the interest in property owned by the deceased individual. Understanding the deceased’s interest in property may require an understanding of forms of property ownership, nonprobate transfers, and Wisconsin’s marital property laws. Currently, the property included in a probate estate is as follows:

1. For a person who is single:
   1. Property solely titled in the decedent’s name
   2. The decedent’s interest in a tenancy in common; and
   3. Life insurance, annuities, retirement accounts, or other beneficiary designations payable to the decedent’s estate.
2. For a person who is married:
   1. The decedent’s portion of marital property, however titled.
   2. The decedent’s interest in individual property; and
   3. Life insurance, annuities, retirement accounts, or other beneficiary designations payable to the decedent’s estate.

What does the probate process look like? :

1. Probate may follow a formal or an informal process.
   1. Informal probate is a slightly simplified process in which any hearings are held before a register in probate and an attorney is not required, but may still be used.
   2. Formal probate is a slightly more complex process that allows for contested hearings. Hearings are held before a judge and an attorney is required.
2. In general, the probate process has the following procedures and duties:
   1. Applying for probate--Informal or Formal
   2. Creating an inventory of the decedent’s property (including valuation of the property), 
   3. Providing notice to creditors,
   4. Negotiating creditor claims, 
   5. Attending any necessary hearings,
   6. Keeping a record of all income and distributions, including obtaining receipts for all distributions
   7. Making distributions,
   8. Filing taxes, and
   9. Making interim and/or a final account.

This is only a brief overview of the process. For more detailed information regarding informal probate, check out “A Personal Representative’s Guide to Informal Estate Administration in Wisconsin.” Please note, however, that neither the Personal Representative's Guide, nor this article fully lay out the complexity that can accompany probate. For more information about probate, please speak with a qualified attorney who focuses on the areas of probate and estate planning.

Can I avoid the probate process? : Avoiding probate can be accomplished with a good estate plan. To learn more about how estate planners help their clients avoid probate, check out this article.

Heller-Neal Law Offices can help you with your estate planning, probate avoidance, and asset protection needs. Contact Heller-Neal Law Offices today for a free consultation. Attorney Heller-Neal can be contacted via phone at (262) 902-0595 or via email at [email protected].

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