Watch the video to learn about your options.
There are a number of different strategies to avoid probate.
The basic concept is that any asset that does not have an automatic trigger to transfer to a new person is considered a probate asset.
For example, if you have a house that is in your name and that is all you have done, that house becomes a probate asset.
There are a number of techniques and tactics that you can use to have those assets automatically transfer.
A combination of those are usually what constitutes an Estate Plan that once you come up with a strategy on how you want to make those transfers, going through the process that makes that all of your assets do transfer without going through probate.
Whether that is a beneficiary designation, joint ownership, or putting the assets into a trust, figuring out the method and technique that works best for you and your assets as well as your family on how those assets should transfer so that they do not have to go through the probate process.
This video is for informative purposes only. It is not intended as legal advice. Small details can have big consequences. Want to know more about it, schedule a free consultation with us.
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.