Probate is a court process for administering the estate of someone who has died leaving property in their name. The court appoints an administrator, called a “personal representative,” to step into the shoes of the decedent and administer the estate by taking care of the outstanding issues with the decedent’s estate, like paying for the funeral and last medical expenses, transferring assets that have titles and ultimately distributing what is left to the named beneficiaries. If there is a will, the personal representative is responsible for seeing that the terms of the will are carried out.
Does a Will Avoid Probate?
Probate is an area surrounded by myths and misconceptions. Clients on a regular basis tell me that they thought probate was not required if the decedent had a will. Myth. A will is not a probate avoidance tool. It is merely a document that appoints one’s personal representative, also known as an executor or administrator in some states, and sets forth a plan of distribution for one’s real and personal property.
When is Probate Required?
Regardless of whether you have a will, if your estate is valued at $50,000 or more when you die, probate is required by Wisconsin Statute. When an individual dies with property solely in their name, no one has the authority to make transfers or to sign documents on the decedent’s behalf. Banks lock the account of a decedent if there is no joint owner on the account or a pay on death designation to a beneficiary. Likewise, if real estate is owned in the decedent’s name only, survivors do not have the authority to sell that real estate without first obtaining authorization from the court through probate.
Estates Under $50,000
For estates under $50,000, you may still need to use some form of probate, which could involve a Transfer By Affidavit, a Special Administration, a Summary Settlement or a Summary Assignment proceeding. My office has years of experience in all forms of probate proceedings.
How Can Probate Be Avoided?
The best way to avoid probate is by using a revocable trust instead of just a will. With a revocable trust, you can appoint a successor trustee to distribute your estate. As long as your assets are titled in the name of the trust, your successor trustee will have authority to sell or transfer the assets as you have directed. Another way to avoid probate is to make sure that assets titled in your name are under $50,000 when you die. To do this, you can go to your bank and put Pay On Death (POD) designations on your accounts; record Transfer on Death to Beneficiary Deeds (TOD) for your real estate, and make sure that all of your investments and insurance have updated beneficiary designations. Assets that pass through a POD, TOD or beneficiary designation are not counted toward the $50,000 threshold for a probate action.
Is an Attorney Required for Probate?
An attorney is not required to open a probate; however, some probates can be very complex and you may need to retain an attorney and maybe an account to assist you.
What is Estate Recovery?
If an individual receives public benefits during life, the state may seek reimbursement from assets in the individual’s name at their death. Estate Recovery may seek reimbursement from real estate, insurance, bank accounts, certificate of deposits (CDs), property transferred on death such as Transfer on Death Deeds, joint property, annuities and more. The Estate Recovery program may not recover personal property such as automobiles, jewelry, appliances, or from cash donated to the family after the person’s death.