Whether planning for the future or dealing with the death of a loved one, our firm prides itself with providing sensitive and confidential advising to individuals and families in the following areas:
- Information for the Personal Representative and Executor – Navigating Probate
- Avoiding Probate
- Estate Planning
Information for the Personal Representative and Executor – Navigating Probate
What is probate?
Probate is a court-supervised process with the following goals:
1) to collect, inventory and value all of the deceased’s property;
2) protect the property;
3) determine and pay debts, administration and tax expenses (include income and estate taxes);
4) determine who is entitled to share in the estate; and
5) distribute the estate to the proper parties, in the proper form.
This process protects the rights of any surviving spouse, creditors, and beneficiaries of the estate. It ensures that once property is transferred to heirs or beneficiaries, it is free from any creditors’ claims, including claims based on medical assistance recovery laws, and any liens for estate or income taxes.
There are several different types of probate proceedings, depending upon the size and complexity of the estate. “Formal” administration is supervised by the probate judge while “informal” administration is supervised by the Register of Probate.
Duration of Probate
Depending upon the size and complexity of the estate, a small estate could possibly be settled within six months, while large or contested estates may, with an extension approved by the court, take two or more years. How long probate takes depends mainly upon the size of the estate, the type of assets owned, the form of ownership, the complexity of creditor’s claims, and whether a business is involved. Estate and income tax planning and marital property issues also may affect the length of the process.
In most counties in Wisconsin, if the estate is not closed within 12 months – unless an extension has been granted – the court may replace the personal representative or the attorney for the estate, or both.
A personal representative (referred to as “executor” in many states) is an individual or corporation named in a will or appointed by the court to oversee the probate of an estate.
Need of an Attorney to Probate an Estate
In a formal probate proceeding, it is necessary to have an attorney to represent the personal representative. In other types of probate, an attorney is not required. The staff of the county Register in Probate can help you obtain the correct forms. However, they cannot evaluate your case from a legal perspective or advise you regarding the many technicalities that often come up during the probate process.
Attorney Payment for Probate Matters
The fees charged in probate matters vary from attorney to attorney. Lawyers may charge on a percentage, an hourly, or a fixed-fee basis. Those who charge hourly keep records of the time spent and of out-of-pocket expenses. Attorney fees must be approved by the judge in formal probate proceedings. Before retaining an attorney, it is important that you clearly understand the fee arrangement.
Tax Considerations in Probate
Federal and Wisconsin estate and income tax planning may be involved in an estate. The size of the estate may not be what determines the tax decisions to be made. You should discuss probate-related tax issues with a lawyer.
Determining Estate Taxes
Federal and Wisconsin estate taxes are applied to the taxable value of a person’s total property at death, including property that does not go through probate. The personal representative must pay these taxes from the estate within nine months of the date of death. In general, there are no estate taxes due on property distributed to a surviving spouse.
You may be able avoid probate in certain instances; for example, no probate is necessary if the total of individually owned property is no more than $50,000 in value. Property titled in joint ownership or in a “living” trust is not subject to probate. However, there are processes that may need to be followed in either of these cases in order to properly transfer these types of assets. Although probate is not required, you may have to report and pay federal (and possibly Wisconsin) estate taxes. You should consult with an attorney to determine if any of these situations apply to you.
From protecting your wealth for future generations to effectively planning for the unexpected, you and your family can trust our experienced estate planning attorneys.
This information is intended to be viewed as general information. Your individual situation or needs require consultation with the advice of an attorney. We are here to help you today.