3 Wisconsin Probate Myths Explained

Wisconsin probate

Probate is the court-supervised process in Wisconsin through which the assets from an estate are distributed. There are both Formal and Informal Probates, the formality dictates how involved the Court is in the process. This process can be lengthy and complicated or it can be short and smooth; there are steps that can be set up to ensure the process is the latter.

Unfortunately, many Wisconsin families are not aware of those steps or are held back by misconceptions about probate. An experienced estate planning lawyer can assist with the steps needed to make the time after a death easier for the family. This post can help clear up the most common misconceptions about Wisconsin probate proceedings.

Myth 1: Every estate goes into probate

Most estates are subject to probate. During the probate process, creditors have three months to file claims against the estate. There are also income taxes to file; the exact details of income tax filings depend on the estate.

However, there are some estates that do not go through the probate process. If the amount of the estate is under the  Wisconsin threshold, the estate is not subject to the probate process. Some assets in an estate may not be subject to probate.

Myth 2: There is no way to avoid probate

As discussed above, not all estates are subject to probate. Even if an estate is going through the probate process, not all assets in the estate may be part of the process. These assets may include accounts with a beneficiary designation, assets included in a trust, or property that is jointly owned. In a joint ownership, property automatically passes to the second party named in the joint ownership.

It should be noted that accounts are only excluded from probate IF the owner has specifically named beneficiaries. This is one of several estate planning steps that can make the process easier for friends and family members after a death.

revocable living trust is another way to make the distribution of assets smoother during a difficult time. Certain items of the estate are placed into a revocable living trust; the “revocable” label means the trust can be revoked at any time. There are three parties named for management and distribution of the assets: a settlor, trustee, and beneficiary (or beneficiaries). The settlor is the individual who owns the assets. The trustee manages those assets when the guarantor is alive or becomes unable to do so. The beneficiaries are the parties designated to receive those assets. A trust can be established with the assistance of an experienced estate planning lawyer. Even with a trust, a will should still be drafted to detail the distribution of other assets not included in the trust.

Myth 3: During probate, the court is responsible for every part of estate distribution

This common estate planning myth is partially true. Probate is a court-supervised proceeding, but the distribution of assets is executed by a personal representative usually named in the will. If a personal representative is not named in the will, the court appoints an executor.

The will can designate any party as the personal representative. The personal representative can be a friend, family member, or organization. A personal representative can also consult a lawyer to assist with the process. The personal representative is charged with compiling a list of assets, managing creditor claims, and distributing assets. Because this is a multi-step process, the probate process may take a year or more.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

What is a warranty deed in Wisconsin?

Wisconsin property deeds, the documents used to legally transfer property between two parties, fall into a few different categories. Two of them are: Warranty Deed and Quit Claim Deeds. Both types of deeds include a legal description of the property (beyond just the address), grantor (current property owner), and grantee (new property owner). Most Wisconsin property deeds need a signature.

The Wisconsin property deed needs to be filed in the county where the property is located. The difference between the deeds are the guarantees included the Wisconsin property deeds. To determine the type of deed that suits the situation, contact a local real estate attorney that can offer advice and draft a legally-sound deed.

Warranty Deeds

A Warranty Deed offers the most guarantees of all the Wisconsin property deeds, meaning that the grantor is responsible for transferring clear title. The Warranty Deed offers guarantees or covenants to the grantee, such as:

  • The grantor guarantees that they are the lawful owner.
  • The grantor guarantees that the property is lien-free and is not subject to any claims by third parties.
  • The grantor guarantees that the title is clear.

Quit Claim Deeds

A Quit Claim Deed is a Wisconsin property deed with no guarantees. Because of the lack of protection for the grantee, Quit Claim Deeds are typically used in situations where there is some degree of trust. These situations could include the transfer of interest during a divorce, when property is transferred to a living trust, or during a transfer from an individual to a corporate entity. Under a quit claim deed, the grantor transfers their interest in the property to the grantee.

A warranty deed and quit claim are the two most commonly used Wisconsin property deeds. Other types of Wisconsin property deeds might be useful to the situation; contact anexperienced real estate attorney to get legal advice specific to the situation. In addition to advising on the right type of Wisconsin property deed, an experienced real estate attorney can guide the parties through the process and ensure that every document and step is legally sound.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

What is an irrevocable trust?

grandparents with family they set up irrevocable trust forRevocable and irrevocable trusts are important estate-planning tools. Basically, these trusts are legal documents that detail specific assets and the distribution of those assets. However, the specific situation and intended purpose are what dictates what type of trust (revocable versus irrevocable trust) is appropriate for every situation; a local attorney can give advice on the right type of trust and draft a legal document custom to the specific situation.

What is the purpose of an irrevocable trust?

The purpose of an irrevocable trust is to set aside an asset for the benefit of another party. This party can be an organization or individual. Different types of assets can be placed in a trust, such as life insurance or a financial account. Because an irrevocable trust applies only to a specific asset (or assets), other estate-planning documents should be drafted to address other situations, such as designating a guardian for minors.

The benefit of an irrevocable trust is that because the asset is in the trust, it is not subject to estate taxes (because an irrevocable trust is separate from the estate), the probate process, and legal action and judgments. An irrevocable trust can save a significant amount of funds and expedite the process at the time of effect (when the guarantor passes). An irrevocable trust can also be drafted so that even though the asset is set aside, interest from the asset in the trust is still received as income.

What makes an irrevocable trust different than a revocable trust?

A revocable trust can be modified; once an irrevocable trust is established, for the most part, the trust cannot be altered. Unlike a revocable trust, an irrevocable trust is not set up for situations where the guarantor is incapacitated, such as from an illness or accident. An irrevocable trust doesn’t usually take effect until the guarantor’s death.

What goals can an irrevocable trust accomplish?

The specific type of irrevocable trust that should be drafted depends on the financial goals and circumstances surrounding the beneficiaries. An irrevocable trust can provide for another entity, such as a charitable trust. A spendthrift trust can be set up for situations where the beneficiary should only receive a set amount of the asset over time. To determine what is the correct irrevocable trust for the situation, contact an experienced estate planning attorney that can assist with process from the start to the finish.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.