Serving Clients Throughout Wisconsin & Illinois 



How Does a Probate Proceeding Work?

A Will, also known as Last Will and Testament, is a legal document that is used in probate court, if a person dies with assets that are in their name alone without a surviving joint owner or beneficiary designated, says the Record Online in the article “Anatomy of a probate proceeding.” The probate process proves the will is valid.

Probate is a judicial or court proceeding, where the probate court has jurisdiction over the assets of the person who has died. The court oversees the payment of debts, taxes and probate fees, in addition to supervising distribution of assets to the person’s beneficiaries. The personal representative (often referred to as executor) is to manage the probate assets and then report to the judge.

Without a will, things get messy. A similar court proceeding takes place, but it is known as an administrative proceeding, and the manager of the estate is called an administrator, and not the executor.

To start the probate proceeding, the executor completes and submits a probate petition with the probate court. Some executors do this on their own, but most hire an estate planning attorney to help. The attorney knows the process, which keeps things moving along.

The probate petition lists the beneficiaries named in the will, plus certain relatives who must, by law, receive legal notice in the mail. Let’s say that someone disinherits a child in their will. That child receives notice and learns they have been disinherited. Beneficiaries and relatives alike must return paperwork to the court stating that they either consent or object to the provisions of the will.

A disinherited child has the right to file objections with the court, and then begin a battle for inheritance that is known as a will contest. This can become protracted and expensive, drawing out the probate process for years. A will contest places all of the assets in the will in limbo. They cannot be distributed unless the court says they can, which may not occur until the will contest is completed.

The will contest can be resolved in two ways: with a settlement between the parties involved, or with a jury trial. It is always possible that the disinherited person could prevail and be awarded any amount of the inheritance, regardless of what the decedent said in their will.

In addition to the expense and time that probate takes, while the process is going on, assets are frozen. Only when the court gives the all clear does the judge issue a Domiciliary Letter, which allows the executor to start the process of distributing funds. They must open an estate account, apply for a taxpayer ID for the account, collect the assets and ultimately, distribute them, as directed in the will to the beneficiaries.

Can a will contest, or probate be avoided? Avoiding probate, or having selected assets taken out of the estate, is one reason that people use trusts as part of their estate plan. Assets can also be placed in joint ownership, and beneficiaries can be added to accounts so that the asset goes directly to the beneficiary.

By working closely with our experienced estate planning attorneys, you’ll have the opportunity to prepare an estate plan that addresses how you want assets to be distributed, which assets may be placed outside of your estate for an easier transfer to beneficiaries and what you can do to avoid a will contest, if there is a disinheritance situation looming.

We invite you to request a consultation with one of our Madison, Wisconsin, or Rockford, Illinois, area attorneys to start the process of creating an estate plan that accomplishes your goals.

ReferenceRecord Online (August 24, 2019) “Anatomy of a probate proceeding”
Categories

 


Quality Counsel

Experience You Can Count On

What Sets Us Apart?

Our Philosophy
  • Love
  • Compassion
  • Integrity
  • Pursue Excellence
  • Teamwork
  • Innovative
  • Veteran Owned

The Stories That Matter

Read Our 5 Star Reviews
    He took the time to understand our goals and our family situation. He was friendly, thorough, and very knowledgeable.

    “What a great attorney! He explained everything to us in plain English, with no legal jargon. He took the time to understand our goals and our family situation. He was friendly, thorough, and very ...”

    - Mark
    Krause Donovan was wonderful...they asked all the right questions, were patient with our back and forth, and everything was wrapped up successfully.

    “My husband and I needed a will and turned to Krause Donovan for their help after the firm had invited us to a "what is estate planning all" about dinner/meeting. Having a will was something we knew we ...”

    - Kris
    Nelson was very understanding and put me at ease from the introduction. He thoroughly explained processes, answered all questions, took the time needed, and was detail-oriented.

    “I first met with Mr. Donovan this fall to discuss my estate planning. This is something a person dreads doing, but Nelson was very understanding and put me at ease from the introduction. He thoroughly ...”

    - Sherry
    They explain the process in terms that are easily understandable and always have your best interests in mind.

    “I highly recommend Kraus Donovan for all of your estate planning needs. They are thorough, knowledgeable, and very helpful. They explain the process in terms that are easily understandable and always ...”

    - Barbara
    He was able to guide us through this process with a thorough understanding of what decisions we needed to make to create clear directives for our family to follow if needed.

    “My husband and I went to Dan to help plan our estate. He and the folks at Krause Donovan were very professional, friendly, and efficient. Dan is fluent in what he practices. He was able to guide us ...”

    - Victoria
/

Take the Next Step

Schedule Your Consultation Today
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please enter your address.
  • Please enter your city.
  • Please make a selection.
  • Please enter your zip code.
    This isn't a valid zip cide.
  • Please make a selection.
  • Please make a selection.
  • Please enter a message.