When a loved one dies, there are prescribed windows for when a will enters and exits probate. Wisconsin courts want a probate case to be opened and closed within 12-18 months. When a person plans to contest a will, they only have 30 days to do so after the probate petition is filed.
If you are concerned about the way a will is going to be executed, you need to speak up fast before your window expires. First, you should confirm that you are a named beneficiary in the current or a previous version of the will or have a family relationship that would have entitled you to an inheritance. This means you have a legal right to petition. Depending on the situation, challenging the way the estate is administered – instead of contesting the will itself – may be more effective. Here’s why.
Will Contests are a Strange Beast
To contest a will, you need to act quickly and have solid evidence that the will documents are not valid. As a beneficiary, you will receive a notification from the court when the probate case is going to be opened. This is the absolute best time to voice an objection because no one has been given any authority yet.
A case can be opened either by getting a signature from all of the people involved, or by having a hearing. If you are unsure, do NOT sign anything. Without your signature, a hearing will be required. At the first hearing for the probate case, a judge or commissioner will ask if anyone is objecting to the case being opened. If there is an objection, they schedule a hearing to learn more about it. Do NOT miss this court date just because you haven’t talked with a lawyer yet. Between the first hearing and the second, you will have time to hire an attorney, have conversations with other beneficiaries, review all of the estate documents, and gather your evidence.
There are three premises on which a will could be invalid: the deceased lacked mental capacity when the will was signed, the deceased was subject to undue influence, or fraud was involved. If your reasons to contest the will do not fall into one of these premises, if you do not have proof, or if you missed the window to object, Block Legal Services recommends changing your focus to challenging the administration of the estate. Once probate begins, there are two opportunities to challenge if you don’t feel the wishes of the deceased are being fulfilled.
Challenge Opportunity No. 1: The court-appointed person should not be in charge
If there is a will, it nominates the executor or personal representative (PR) of the estate. The law heavily favors the appointment of a PR that was named in a valid will. The only way to prevent their appoint would be to show the court that they are legally, mentally, or physically incapable of doing the job of personal representative, which involves settling claims against the estate and distributing the assets.
If there is no will, the situation is very different. You can file paperwork to nominate yourself as the PR. At that point, anyone who disagrees would have to show the court why you would be unable to do the job. If multiple people have filed for who gets to be PR, the court will have to decide who would be the best choice.
Once someone is appointed by the court to be the PR, it becomes much more difficult to challenge them. If you would like to request that the PR be replaced, you will need to provide a legitimate reason why. The standard for removing a Personal Representative can be tough – you will need to prove the PR is neglecting their duty, guilty of fraud or misconduct, or is incompetent.
If the PR does something you don’t agree with during the probate process – let’s say they sell your loved one’s house to their best friend for $1 – it might not be enough to get them removed immediately! Ultimately, they are responsible for making the beneficiaries whole. If you don’t see this occurring, you will have the opportunity to object at the very end of the whole process.
Challenge Opportunity No. 2: Challenge the accounting itself
You can position yourself as a watchdog throughout the estate settlement and asset distribution process with the goal of bringing any objections in front of the court when the final accounting is presented. At this time, you don’t have to challenge whether a will was valid in the first place. You can directly challenge the way a will was administered in order to ensure you and the other beneficiaries received what they were supposed to receive.
The final accounting is the closing out of the estate, where the PR presents a list of what happened to each asset – including receipts. This is the best bet for most beneficiaries looking to challenge a will. You can share concerns you had along the way, flag suspicious accounting, provide a list of tasks you felt were completed incorrectly – with the goal of all beneficiaries walking away whole.
The law has tunnel vision when it comes to probate – they want each case to open, settle, and close efficiently – and rightfully so. Courts assume everything is correct in a will unless someone can bring evidence that shows a reason to believe it is not correct. The best thing to do for your own estate is to arm yourself early, raise concerns as soon as you have them, and object as quickly as you can. It is much easier to drop an objection that turns out to be unfounded than to raise one too late.
Prevent Future Concerns Around Your Estate
All that is needed to sign a will is a list of heirs, assets, and where you want those assets to go. You can avoid concern and uncertainty by your beneficiaries after you pass with an estate plan. A strong estate plan can do so much more than simply direct how your assets are handed down. It can offer a variety of protections during your lifetime, not only for your assets, but for you and your family – all while remaining private. This includes wills, trusts, power of attorney, avoiding probate or protecting from probate litigation, and prenuptial and postnuptial agreements.
This article was written with the assumption that there is a will in place and that the loved one is deceased. If your loved one is still alive and you feel uncomfortable with the way their estate is being handled, please visit the National Center on Elder Abuse to connect with state resources that can help you take action.
A common concern we hear in the initial stages of estate planning is that people think they do not have enough assets for an estate plan to be worth it. “I just need a simple will,” they often say. However, the premise of an estate plan is not for tax purposes (unless you are a multi-millionaire) and is not about solely about distributing the money. The primary reason for an estate plan is to develop a strategy – to put a structure in place that gives you the flexibility you want and will handle the contingencies of life.
A good example of this can be seen in a complicated trust we recently developed. Our clients were looking to leave their vacation cabin to their 15 grandchildren with the expectation that they would all be able to use it. While the cabin was only worth $25,000, it was important to them that all their grandchildren would have access and that there was no animosity within the family. By establishing these wishes through a trust instead of a will, they guaranteed they would be honored once they were gone without causing needless complication or court involvement.
Beyond the transfer of wealth and assets, there are other factors that should prompt you to have an estate plan in place, such as:
Some estate plans include a trust, but many do not. Without a trust, your wishes will be honored, whether that is through a beneficiary designation or through your will. With a will, for your assets to be allocated according to your wishes, they will have to go through the probate courts, which usually means:
With a proper estate plan in place, these inconveniences can often be avoided. Beginning the process of creating an estate plan tends to be the hardest part. Take the first step by consulting a lawyer to get all your questions answered and come up with a strategy specific to your needs. From there, your attorney will walk you through the entire process.
Keep in mind, it is often less expensive to set up an estate plan and go through the work on the front end, rather than not having one in place and going through probate. In many cases, estate plans can be done in less than three weeks.
Start today with a free consultation.
One of the biggest misconceptions surrounding wills is the notion that if you have one, your family won’t have to go to court once you’re gone. Unfortunately, that is not the case; a will only deals with property that does go through court.
Let’s take a step back and look at what a will is and what probate means.
In layman’s terms, a will is a set of instructions to the probate court on how to distribute your probatable assets. However, not all assets will end up in probate.
Let’s look at an example where this would be the case: Say you pass away, and your will specifies that your two children are to inherit the house, but you have a beneficiary designation in place that names only your oldest child as the heir to the house, what happens next? Since a beneficiary designation triggers first, the house would stay out of probate and be given to your oldest child, even though your will specifies otherwise. If you did not have the beneficiary designation set up, the house would then go to probate court and your will would designate where the house goes.
If a will cannot keep your family out of court, how do you ensure your assets go where you intend while also keeping your family out of court? The simplest way to do this is to create an estate plan.
An estate plan typically includes a will, powers of attorney, trusts, and advance directives. It is a comprehensive strategy that dictates not just who will receive your money, but who can step in to take care of you, and lets you take care of the people you are leaving behind according to your intentions. Having an air-tight plan in place will give your loved ones peace of mind when you are gone.
If you have been thinking or on the fence about creating an estate plan, here are four things you should consider:
As a closing thought, when deciding if you need a will or an estate plan, keep in mind the limitations of a will. A will serves certain functions. If it is used correctly, it works great. But, if you are intending for it to do something it cannot legally do, it will not work.
Ask yourself how a will fits into your overall strategy. If what you think you need is a will or a will is all you have but you have no strategy to go with it, an estate plan may be what you are actually looking for.
Talk to one of our lawyers today by setting up a no-obligation consultation to decide what the right step is for you.