Neuberger, Griggs, Sweet & Froehle, LLP

Probate Law: Transferring Assets and Debts to Living Relatives

You find out you are the personal representative of a deceased relative and are unsure of the proper steps. You may be having difficulty understanding wills and trusts or probate law, especially regarding asset transfer and other obligations. In Wisconsin, the rules for handling the debts of a decedent and transfer of his assets to beneficiaries are covered under probate law.

We will cover the details of how to manage the estate of a loved one. Even if you believe you can handle the estate effectively, it is always beneficial to consult with an attorney who specializes in estate and probate law.  

How Does Probate Law Work?

Probate is court supervision for validating a will and distributing assets of a deceased person. The person designated as the personal representative must have the approval of the court to act in that capacity. They are the fiduciary of the estate.

Responsibilities include inventorying the deceased person’s assets, notifying creditors, and paying outstanding debts. There is specific paperwork to prepare and file with the court. The final step is distributing assets to beneficiaries.

In Wisconsin estates that are smaller than $50,000 may avoid probate. Property that is being passed to beneficiaries under specific types of transfers may avoid the probate process.

Wisconsin law provides personal representatives with compensation of 2% of the total value of the probate estate. This applies unless the deceased person’s will or trust stipulates different compensation for the personal representative. Personal representatives receive payment from estate assets.

File and Validate the Will

Your first duty as a personal representative is to file the Will and petition the court to open a probate case. The judge will determine whether the will in your possession is valid.

If the judge makes a determination that the will is valid and appoints you as official personal representative, you will receive letters of authority. The letters prove you are legally qualified to manage the estate.

Identify and Inventory Decedent’s Assets

The court will require an inventory of the decedent’s assets, including their value. To complete this task you may need to obtain appraisals of real property, automobiles, jewelry, collectibles, or anything else of value. The court may require the “date of death” value rather than the present value. This may depend on how soon after death the inventory is completed.

As the personal representative, you will be responsible for making sure that the assets are secure. You must also pay all property taxes, insurance, vehicle payments, and mortgage payments in a timely fashion during the probate process.

Notify and Pay Creditors

Personal representatives must identify and notify each of the decedent’s creditors. You must mail a letter to each known creditor and publish a “notice to creditors” in the local newspaper.

Payment of debts is in the order of receipt. This continues until payment of all debts is complete or the depletion of assets. Payment of debts must be complete before the transfer of assets to beneficiaries.

File Decedent’s Final Taxes

The personal representative of an estate must file the decedent’s final taxes.

If you are not comfortable with the preparation of estate taxes, you may hire a tax expert to handle this step. Payment of the tax preparer’s fees is from the estate.

Distribution of Estate Property

Once all steps regarding inventory, payment of debts, and taxes are complete you may request the court’s approval to distribute the remaining assets. 

Any property or money that the deceased designates going to a beneficiary must be distributed to that person. Real property may also be transferred upon death without probate if there is a “time of death” beneficiary listed in a document or will. Transfers at the time of death also apply to those with an interest in the property as part of spousal survivorship or owned by two or more persons as joint tenants.

Beneficiaries may receive specific property they are designated to receive prior to the final judgment on the estate pursuant to §863.01 of the Wisconsin statutes.

The personal representative may sell, mortgage, or lease property of the decedent. This may be done to pay off the creditor’s claims or to distribute profits from the sale among beneficiaries.  

There are additional laws regarding steps a personal representative must take in the event a beneficiary is prohibited from receiving their inheritance in accordance with §863.37. This includes notification to the person under §879.03 and payment of those funds to the secretary of revenue for deposit.

What if My Deceased Relative Does Not Have a Will?

If your deceased relative passes without an estate plan or will in place, they are considered to have died intestate. That means that the court will decide who serves as a personal representative of the estate. The deceased person’s assets will be distributed according to Wisconsin’s intestate laws for the distribution of assets.

If you or a loved one does not have a will or estate plan in place, it is important to speak with a reputable attorney. They can help you make sure assets are distributed in accordance with your or your loved one’s wishes.

Do I Need to Hire a Probate Lawyer?

Wisconsin law may require you to have an attorney for the estate administration. This is based on whether the court determines the process to be a formal or informal administration. If you have a formal administration, the law requires an attorney.

A Probate law attorney who understands probate laws will handle or guide you through the probate process. Make sure you hire the right lawyer for the job by asking a few questions during the consultation, including:

  • How much experience in this area of law do you have?
  • How long will it take to resolve my case?
  • Are there any potential issues I need to prepare for?
  • Are there any costs or fees I should expect?

When you hire the attorney you will receive a payment fee contract to sign. Read it carefully and make sure you understand the terms prior to signing.

Follow Probate Law

The best way to make sure you are in compliance with probate law is to consult with an attorney as soon as possible following your loved one’s death. They can advise whether your estate may be formal or informal and guide you through the probate steps.

The law office of Neuberger, Griggs, Sweet & Froehle, LLP have combined attorney experience of 150 years and combined legal assistant experience of 200 years. Call our Watertown office at (920) 261-1630 or our Lake Mills office at (920) 648-8381 to schedule a consultation. Our highly skilled professional staff look forward to assisting you with your estate and probate needs.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

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