Practicing Attorneys: Tim Anderson, James Phelan, James Rudd, Christine Wanless, Wyon Wiegratz
A loved one recently passed away, what do I do?
First we always tell clients the first thing is to make sure funeral arrangements are made in accordance with the decedent’s wishes. “Decedent” means “the deceased person whose estate is subject to administration.” Wis. Stat. § 851.05. Next, our attorneys at Remley Law, S.C. can help discuss the affairs of the decedent’s estate, including the best way to collect and preserve estate assets.
Is court involvement required to administer a decedent’s estate?
Each estate is different and an attorney can help evaluate whether probate proceedings are needed in your specific situation. However, generally unless the decedent’s probate-eligible assets are less than $50,000, either formal administration or informal administration with a probate court will be necessary. “Informal administration of estates” means the “administration of decedents’ estates … without exercise of continuous supervision by the court.” Wis. Stat. § 865.01. On the other hand, a “formal proceeding … is a judicial proceeding before the court involving the administration of the estate of a decedent, including a court proceeding concerning the use or availability of this chapter.” Wis. Stat. § 865.03. A formal proceeding “may be initiated by the personal representative or by any interested person at any time by a written demand therefor.” Id.
What is probate?
Probate is the court proceeding through which a will is proved to be valid and the estate of a decedent is administered. The process, generally includes collecting a decedent’s assets, liquidating liabilities, paying necessary taxes and distributing property to heirs.
What is the first step of probate?
A petition for administration of decedent’s estate will need to be filed by any person who is interested or who is named to act as personal representatives in the decedent’s will. Wis. Stat. § 856.07.
How do I show my authority to act to administer the decedent’s estate?
Domiciliary letters will be granted to the personal representative who is nominated in the decedent’s will, interested person, or a person the court selects. Wis. Stat. § 856.21. If there is a testamentary trust created, “letters of trust shall be issued to the trustee upon admission of the will to probate at the same time that letters are granted to the personal representative, unless the court otherwise directs.” Wis. Stat. § 856.29. Once such letters are obtained, “the personal representative succeeds to the interest of the decedent in all property of the decedent.” Wis. Stat. § 857.01.
Once appointed as personal representative, what are the personal representative’s powers and duties?
After you have been appointed as personal representative, an attorney can provide more information on your specific powers and responsibilities. However, as general guidance, Wisconsin Statutes section 857.03, provides
[t]he personal representative shall collect, inventory and possess all the decedent’s estate; collect all income and rent from decedent’s estate; manage the estate and, when reasonable, maintain in force or purchase casualty and liability insurance; contest all claims except claims which the personal representative believes are valid; pay and discharge out of the estate all expenses of administration, taxes, charges, claims allowed by the court, or such payment on claims as directed by the court; render accurate accounts; make distribution and do any other things directed by the court or required by law.
What information are other parties entitled to during the administration of the estate?
Wisconsin Statutes section 858.03 provides “[n]ot more than 5 days after filing an inventory with the court the personal representative shall mail or deliver to the surviving spouse and to all other persons interested, except those whose only interest is as a beneficiary of a monetary bequest or a bequest or devise of specific property, a statement indicating that the inventory has been filed and that a copy of the inventory, or a summary indicating the value of each item of property in which the person has an interest, will be sent to the person upon the person’s written request to the personal representative.” See also Wis. Stat. § 865.11(2).
What needs to be included in the inventory?
The inventory prepared by the personal representative shall be “an inventory of property owned by the decedent at the time of death. The inventory may indicate as to each listed item its fair market value and the amount of any encumbrance as of the death of the decedent and shall list the fair market value of and the amount of any encumbrance on bank and savings accounts, securities and real property.” Wis. Stat. § 865.11.
What will happen with the decedent’s debts?
Wisconsin Statutes section 859.01 provides, “[w]hen an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent’s estate. The date shall be not less than 3 nor more than 4 months from the date of the order.” Generally, if the claim is not filed by the date set forth, then such claims “are barred against the estate, the personal representative and the heirs and beneficiaries of the decedent.” Wis. Stat. § 859.02.
What if there is not enough money to pay all claims of the estate?
Wisconsin Statutes section 859.25 provides that when there are not enough assets in the estate to pay all claims, payment shall be made in the following order:
(a) Costs and expenses of administration.
(b) Reasonable funeral and burial expenses.
(c) Provisions for the family of the decedent under ss. 861.31, 861.33 and 861.35.
(d) Reasonable and necessary expenses of the last sickness of the decedent, including compensation of persons attending the decedent.
(e) All debts, charges or taxes owing to the United States, this state or a governmental subdivision or municipality of this state.
(f) Wages, including pension, welfare and vacation benefits, due to employees which have been earned within 3 months before the date of the death of the decedent, not to exceed $300 in value to each employee.
(g) Property assigned to the surviving spouse or surviving domestic partner under s. 861.41.
(h) All other claims allowed.
When can the estate be closed?
Wisconsin Statutes section 863.25 provides “after the payment of the allowances, debts, taxes, funeral expenses and expenses of administration and when, if necessary, a fund has been withheld from distribution for the payment of contingent claims, for meeting possible tax liability or for any other reasonable purpose, the personal representative shall, if the estate is in a condition to be closed, file the final account and at the same time petition the court for hearing on the final account and for final judgment assigning the estate to the persons entitled to the same.”
On the other hand, pursuant to Wisconsin Statutes section 856.16, a personal representative can also close an estate “by filing with the probate registrar a verified statement.” Such statement shall state that the personal representative has:
(a) Duly given notice to interested persons under s. 865.05 and to creditors under s. 859.07, and that the deadline for filing a claim under s. 859.01 has passed prior to the date of the statement;
(b) Fully administered the estate of the decedent by making payment, settlement or other disposition of all claims which were presented, expenses of administration, reasonable funeral and burial expenses and death and other taxes, except as expressly specified otherwise, and that the assets of the estate have been inventoried and distributed to the persons entitled to them. If any claims, expenses or taxes remain undischarged, the statement shall disclose in detail all arrangements made to accommodate the outstanding liabilities; and
(c) Sent a copy of the statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the personal representative’s administration to the distributees whose interests are affected thereby.
What will be included in the final judgment?
“In the final judgment the court shall approve the final account, designate the persons to whom assignment and distribution are being made, and assign to each of them the property or proportions or parts of the estate or the amounts to which each is entitled.” Wis. Stat. § 863.27.
When will a personal representative be relieved of his or her duties?
Wisconsin Statutes section 863.47 provides “[u]pon proof of the recording of certified copies of the final judgment or abridgments thereof, if required by s. 863.29, and upon the filing of receipts from the distributees for all other property assigned in the final judgment, or other evidence of transfer satisfactory to the court, the court shall enter an order finding those facts, discharging the personal representative and canceling the personal representative’s bond.”
If a statement was filed pursuant to Wisconsin Statutes section 865.16, as provided above, and “no proceedings challenging the statement or otherwise involving the personal representative are pending in the court 6 months after the statement is filed, appointment of the personal representative terminates.” Wis. Stat. § 865.16.
For help with all probate matters, call our Neenah office at 920-725-2601 or use our online form to make an appointment.