Probate Attorney | Waukesha

Probate Attorney | Milwaukee & Waukesha

When you lose a loved one, there is a lot to think about. An important, but often stressful, piece of dealing with a family member passing is the settling of the estate.

No need to worry; Fricker Law Office is here to help. Attorney Robert Fricker is an experienced, professional resource when it comes to managing and understanding estates, wills, and probate law. We are a trusted resource for thousands of local families when it comes to navigating and overseeing the probate process.

With over 35 years of experience assisting Wisconsin families with all types of probate issues, Fricker Law Office can help you and your family efficiently and effectively administer your loved one’s estate. For questions, help, or more information, call us at (414) 442-9494.

What is probate?

Probate is a legal process in which the court oversees the execution of a Last Will and Testament. This allows the validity of the will to be proven and gives anyone an opportunity to contest the contents of the will. Additionally, the probate process ensures record-keeping of how all property was distributed or transferred, debts settled and taxes paid.

There are a number of types of probate and, depending on the size of the estate, the probate process may be avoided entirely.

For help understanding probate, give the experienced attorneys of Fricker Law Office a call today at (414) 442-9494.

Common Probate Challenges

One of the first steps in the probate process is the notification of all “persons interested” in the estate. This includes named beneficiaries and the Executor, but also includes anyone who would benefit from the estate were there no will present – parents, grandparents, siblings…even cousins, nieces and nephews. Any children from a previous relationship must be notified as well. If a family has not remained close, either emotionally or physically, or when the deceased was one of the last in a family line, these “persons interested” can be difficult to trace.
Probate court takes place in the county seat, so travel may pose an issue for older adults, those with disabilities, those with young children at home, or those without the means to travel.
Going to court can be intimidating. Particularly when it comes to paperwork, some people may feel overwhelmed even thinking about going to court and wading through the legal process.

Lack of knowledge of the probate process is a common challenge. Often, this is the first time people have even heard the word ‘probate,’ let alone understood what it means. In addition to a knowledge of probate, the whole process runs more smoothly when those involved have a knowledge of estate taxes and court processes.
Probate can take a long time. This can get frustrating for some people, particularly if they are waiting for a payout from an estate. Wisconsin State law allows a maximum of 18 months for probate, though a court may provide for an extension.
Finally, probate really couldn’t happen at a worse time. For many who have just lost a loved one, emotions are running high. The complications involved in probate can cause additional stress and mental taxation.

Frequently Asked Probate Questions

What if my loved one didn’t leave a will?

If a loved one has passed away without leaving a will, there are laws in place that dictate where and how the estate is distributed. These are collectively called “Intestate Succession” laws. Read the unabridged Wisconsin Law on Intestate Succession here.

Here is a brief overview of Wisconsin intestate succession law basic rule:

If part or all of an estate is not accounted for by a will, it will pass to the person’s surviving heirs in the following order:

Surviving spouse or domestic partner
If there is no surviving spouse or domestic partner, everything is passed to issue per stirpes. This means that, if all of the deceased’s children are living, the estate is distributed among the children with nothing going to the grandchildren. If one or more children of the deceased are not living, the portion of the estate that would have gone to that child is distributed among the children of that child (the grandchildren of the deceased).
If there is no surviving spouse, domestic partner, or children, the estate goes to the parents of the deceased.
If no surviving spouse, domestic partner, children, or parent, the estate goes to the sibling or their issue per stirpes.
If no surviving spouse, domestic partner, children, parent or siblings, the estate goes to the grandparents or their issue per stirpes – half on the maternal and half on the paternal side.
If there is no relative as described above, the estate goes to benefit the Wisconsin School Fund.

Exceptions to Wisconsin Intestate Succession Law Basic Rule (summarized above)

If the deceased had children with someone other than the surviving spouse, then the estate is split between those children and the surviving spouse. These pre-spouse children will receive the entirety of the deceased’s marital property and/or property held by the deceased and spouse as tenants in common. These pre-spouse children also inherit half of the deceased’s interest in individually-held property. However, the surviving spouse has the right to retain certain home-related property and one car.

The surviving spouse inherits all real estate interest in joint marital property they held with the deceased.

If your situation involves any of the above exceptions, it is an excellent idea to hire a lawyer to ensure the estate is distributed according to Wisconsin law. The experts at Fricker Law Office have over 35 years of experience with probate law and estate management and distribution. Give us a call today at (414) 442-9494.

What is probate? (longer answer)

Probate is a legal process in which the will of a deceased individual is “proven” and all property is distributed.

In the probate process, the court opens a case to ensure the executor, or personal representative, responsible for distributing the property and acting on behalf of the deceased, does their job thoroughly, and anyone who may want to contest the will is given the opportunity to do so. The probate court puts forth a notice to all who may want to come forward, which is published in the newspaper and, therefore, is available to anyone.

Prior to this, the executor of the will – a person appointed by the deceased or by the court if the deceased never named a person for this role – makes a full inventory of all property owned by the deceased party. This inventory is then filed with the court and becomes available to the public, when individuals are invited to come forward and contest the will.

All of the deceased’s debts are then paid out of their estate and the rest of the property is distributed based on the instructions outlined in the will. The executor is responsible for keeping careful record of everyone who received a piece of the estate and how much, the amount of value, if any, that came in or was paid out, until the estate is empty. At this point, they file these records with the probate court. Then, the executor is released from their duties by the court and the case is closed.

The process outlined above is known as “death probate.” This type is most common, but there are other types of probate as well.

Does every estate settlement require probate?

Not all estates require probate, though many do. For estates with a total value under $50,000, all that may be required is a Transfer by Affidavit process, which is much simpler than probate and can often be done via mail. Additionally, if the deceased established a revocable living trust and transferred their property therein, probate may be avoided.

What are the different types of probate?

Formal probate

When a person dies and does not leave a will, the petitioner must request signed waivers and consents from any individual interested in the will. If they do not succeed in obtaining waivers from all, they need to undertake formal probate. Formal probate follows the same general outline as death probate, but with additional documentation and advance notice given in regards to the estate. The entire process is conducted under the supervision of a judge.

Informal probate/informal administration

If there are no objections or contestations to the execution of the will, it may be possible to follow informal probate. This simplified process often does not require going to court and, depending on the rules of the county, may be able to be done through the mail.

Special administration

As with anything in life, there are always exceptions to the rule. When a particular asset of the deceased’s estate cannot be handled within traditional death probate, such as accessing a safety deposit box that may contain the will or opening a frozen account, this will happen under a special administration case within the courts.

Transfer by affidavit or Summary assignment/settlement
If the total value of the estate is less than $50,000, the court may allow the executor to skip probate and follow a simplified process. This can also be used when debt owed is higher than the total value of the estate.

What costs are associated with probate?

There are a few costs associated with probate: court filing fees, attorney fees, bonds (if applicable), and a small fee and reimbursement of expenses for the executor. All costs are covered by the estate.

Court filing fees are determined by the value of the estate, while attorney fees are not based on the value. Rather, an attorney may charge per hour or a flat rate. Request an estimate from any attorney you consider hiring once they have an understanding of the estate.

Any cost to the executor, including travelling expenses, will be reimbursed out of the estate. There may also be a small fee paid to the executor for carrying out their duties. This may be written into the will, decided on by the beneficiaries, or predetermined as 2 percent of the value of the inventory of the estate. However, if the executor does not adequately perform their role, the court has the power to withhold this fee.

Who manages the probate process?

Probate is a legal process overseen by probate court. A Last Will and Testament names an executor, sometimes called a personal representative, who manages the distribution of the estate. This person, often someone whom the deceased knew and trusted, is responsible for working with the probate court to establish the validity of the will, distribute property according to the wishes of the deceased, settle debts, pay taxes, and report everything back to the court.

When naming an executor, it is critical to choose someone you feel is trustworthy, detail-oriented, patient, and capable of handling this significant responsibility.

What can I expect from the probate process?

The length of time you can expect the probate process to take varies widely, and depends on a number of factors. Size of estate, type of property contained therein, taxes, marital property concerns, creditors’ claims on the estate, and business ownership are just a few. Wisconsin State law allows a maximum of 18 months for probate, though a court may provide for an extension. However, if the probate process takes too long, this could be a reason for the court to replace the executor, attorney, or both.

During the probate process, it is still possible that beneficiaries may receive the property that was left to them. Once debts have been settled, taxes paid, and expenses covered, the executor has the power to begin distributing parts of the estate.

Every situation is different, so it is nearly impossible to accurately guess how long your case may take. However, the experienced attorneys of Fricker Law Office are here to make probate as easy as possible for you and your loved ones. Give us a call at (414) 442-9494 to get started.

I’ve been named an executor of a will. Do I need a lawyer to manage the probate process?

As the executor or personal representative of a will, you may find that you need the advice of an experienced attorney to help you through the probate process. You are welcome and encouraged to hire a lawyer to provide assistance of this kind, and it does not need to be the lawyer who originally helped draft the will.

Under Formal Probate, it is required that a lawyer represent the personal representative and estate in court and strongly advised that this professional attend all meetings and hearings. This person will help the representative understand the case and can provide specific legal advice.

What is not covered by probate?

In most circumstances, estates with a total value under $50,000 can bypass the probate process and complete a “transfer by affidavit” process instead – something that can usually be done by mail.

In larger estates, certain types of property are excluded from probate. Jointly-owned property transfers to the surviving owner, and retirement accounts pass automatically to a beneficiary, if one is named.

What are the tax ramifications of probate?

The State of Wisconsin has neither estate tax nor inheritance tax, no matter the value of the estate or property distributed to an individual. However, the estate is still beholden to any state or federal income tax on money it earns during the probate process.

Does the deceased’s entire estate have to go through probate?

In short, the answer is no. If the estate contains accounts or assets with a named beneficiary, like a retirement savings account (IRA, 401k, etc.) or an insurance policy, that asset will be exempt from probate. Additionally, in Wisconsin there is a marital property law, meaning that all property owned jointly by a married couple (i.e. the property is in both spouses’ name) automatically transfers ownership to the living spouse and does not go through probate.

If a piece of real estate is only in the deceased’s name and was not put into a trust, it will have to go through the probate process in order to be sold. Probate allows transfer of ownership to a living person, who then has the authority to sell the property. While probate can be put off if there is no immediate plan to sell the property, it is always a good idea to get it done sooner rather than later.

Should I hire a probate attorney?

If a loved one has passed away and you are the Executor or Personal Representative for their estate, you have a big job ahead of you. In addition to navigating the complicated legal processes involved in probate, you and your family may also be in a period of grieving, which can be difficult and exhausting. This is a time in life that you will want a trusted, competent professional by your side to help you navigate the probate process and avoid making expensive mistakes. The experienced attorneys of Fricker Law Office are here to help.

What does a probate attorney do?

If this is your first time acting as the Executor of an estate, having an attorney by your side will ensure that everything goes smoothly – particularly if the estate goes into formal probate. All the research in the world cannot prepare you for the legal complexity of certain aspects of the probate process – there are many complicated steps you need to take as the Executor to see the estate through to its conclusion.

An experienced probate attorney like those of Fricker Law Office can help you navigate:

Notification of all beneficiaries and potential beneficiaries
Inventory and valuation of the estate
Authentication of the deceased’s will
Litigation of challenges to the estate
Working with creditors who want to make claims on the estate
Completion of paperwork throughout the probate process
Avoidance of errors in the process that can cost you time and money
Sale of estate assets (if applicable)
Paying necessary gift taxes

How can I avoid probate?

You may be thinking: Probate sounds complicated and time consuming…is there any way to avoid it?

We hear this question a lot, and there are several answers to it. Yes, it is possible to avoid probate but the alternative options may be just as complicated and, potentially, more expensive.

The simplest situation in which an estate can avoid probate is when the total value of all probatable assets – including real estate, bank accounts, and property personally held by the deceased – is under $50,000.

Another method of avoiding probate is for the estate holder to set up a revocable living trust while they are still alive. All probatable assets are then transferred into this trust, and probate can be avoided upon the estate holder’s death.

What is a revocable living trust?

A revocable living trust (also called a living trust or a revocable trust) is legal document created during a person’s lifetime that directs how that person’s assets are to be managed during his or her lifetime and also directs how the assets are to be distributed upon death.

The person responsible for the administration of the trust is the trustee. A person creating a revocable living trust often names himself or herself as the initial trustee. The trust document will designate the person or organization that will act as the successor trustee in the event of the death or incapacity of the original trustee. The trust will also contain detailed instructions telling the successor trustee how the trust assets are to be managed and distributed.

Sounds great! What’s the downside?

If you can avoid the time-consuming probate process by creating a trust, why wouldn’t you? One reason is that a trust makes it cumbersome to purchase, sell, and manage assets contained therein while the estate holder is living. Additionally, setting up a trust is more complicated and expensive that creating a will.

Still, it is likely that setting up a trust is a better option for most than going through the probate process. Talk to an experienced estate planning attorney about your options.

Are there any other ways to avoid probate?

Assets that are jointly-owned with rights of survivorship transfer without probate to the surviving owner.

Finally, you may have heard of payable on death (POD) or transfer on death (TOD) designations that can be applied to certain assets to help them avoid probate upon the death of the estate holder. While these options are available to you, they can make estate management upon death of the estate holder significantly more complicated.

When it comes to estate planning, the best way to find the solution that is right for you is to talk to an expert. The team at Fricker Law has over 50 years of experience with probate, wills, and trusts, serving thousands of clients in southeastern Wisconsin. Give us a call at (414) 442-9494 today.

Questions about probate?

Call for more information.

(414) 442-9494

Probate Attorney | Milwaukee & Waukesha

What is probate?

Common Probate Challenges

Frequently Asked Probate Questions

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PROBATE LAW & ESTATE PLANNING