PROBATE …a time for personal professional counsel and advice

Death imposes great hardship on the survivors. Often family and survivors face complicated legal issues, tax problems and simply don’t know what to do in these trying times. State law requires family and survivors to settle the decedent’s estate within certain time limits and can impose significant financial penalties for failure to do so. It is a time for personal, professional counsel and advice. Experienced legal counsel can make these difficult times easier to bear. Following are some questions and answers that may help you better understand the legal proceeding we call “probate.”

What is Probate?
Probate is the court supervised transfer of a deceased person’s assets to the legal heirs or beneficiaries named in the will and determination and payment of the debts of the deceased, estate taxes and income taxes. This process protects the respective rights of debtors, creditors and beneficiaries of the estate.

What is Involved in Probate?
Formal probate requires the appointment of a personal representative and usually the employment of an attorney for the personal representative. They proceed:

• to take possession of and preserve the real and personal property.
• to make proper demand and collect all the debts, claims and notes due the deceased.
• to complete any pending lawsuits in which the deceased had an interest.
• to determine and pay all state and federal estate taxes.
• to pay the valid claims of creditors and where necessary to sell estate property to do so.
• to distribute the remaining assets to the proper persons.

These proceedings require the preparation and filing of many legal documents, the giving or publication of notices, the holding of hearings in court, and making of appraisals of property, transfer of all assets, closing the probate proceedings and final discharge of the personal representative by the court.

Is Probate a Matter for the Court?
Formal probate proceedings are under the jurisdiction of the court. Each step and the legal documents involved are subject to scrutiny and approval of the court. Almost all disputes arising in probate are tried by the judge without a jury. The court also approves payment of all bills, expenses and fees and orders the final distribution of the assets of the estate. There are many different types of probate proceedings depending on the size and complexity of the estate.

Who is Responsible for the Probate?
If a person dies leaving a will, it ordinarily names a “personal representative.” If there is no will, the law provides that the court seek guidance from certain relatives and heirs in naming a “personal representative.” In the probating of an estate, the “personal representative” is directly responsible for the proper settlement of the affairs of the deceased person. It is the personal representative who directly employs legal counsel to aid in settlement of the estate.

How Long Does Probate Take?
It is difficult to predict how long it will take to settle any estate because each one is different. The court requires that an administration of an estate be completed within 18 months unless the time is extended by the court for good cause. Usually our office is able to close an average estate between six and twelve months after the opening of the estate. Upon being retained by a personal representative to represent an estate, our firm provides a detailed letter to that personal representative outlining the specific duties of the personal representative, any unique problems involved in the the estate and gives an estimate of the length of time probably necessary to close that particular estate.
The personal representative has a six month benchmark from the opening of an estate to complete the inventory for the estate. Federal and Wisconsin estate taxes must be paid within nine months from the date of death of the decedent.

How Much will it Cost?
The fees of the personal representative, filing fees and Federal and Wisconsin estate taxes are specified by law. The attorneys fees are established by the attorney and the personal representative and paid for by the estate. All fees are subject to approval by the court. The personal representative is entitled to a fee of 2% of the inventoried estate plus any net gains earned by the estate. This fee may be waived by the personal representative. Additionally, personal representatives are entitled to be reimbursed for any direct out-ofpocket expenses such as long distance telephone calls and travel expenses incurred performing their duties in regard to settlement of the estate.

In sizable estates there can be federal and state estate taxes as well as income tax liability during the period of probate. Tax matters demand a substantial amount of expertise and time. Experienced legal counsel can be invaluable regarding tax matters. Attorneys fees are determined by a number of factors including the size of the estate, the amount of the responsibility assumed by the attorney and the results achieved during the course of administration of the estate. Our firm will send a detailed letter to the personal representative upon the opening of the estate outlining our fee arrangements indicating specific criteria used in determining the fee and estimates of what the fee would be under the particular circumstances of the estate. Our office will bill the estate several times during the course of the administration of the estate. Probate does not have to be a long, difficult experience. With the proper legal assistance, probate can be a smooth and easy task. In some cases, you may never even have to appear in court. Local rules also shorten the time of probate. In Walworth County, for example, an inventory is due within three months and the entire administration must be completed within one year.

There are also other ways to transfer property after death that can be more time efficient. In small estates, property can be transferred by affidavit and will require no time in court at all.

Our office employs skilled legal assistants who assist attorneys in the administration of estates. If the attorney is unavailable to answer your questions at any time, you can feel free to discuss matters of the estate with them. You will be introduced to these legal assistants upon retaining our firm so that you are familiar with them and can feel comfortable working with them throughout the administration of the estate.

Our goal is to serve, assist and make the administration of an estate as smooth and as problem free as possible under the circumstances. Good professional counsel at a trying time such as this can make difficult problems more easy to bear. Clair Law Offices, S.C. has provided experienced probate counsel to families for many years.

For more information or specific questions you have, please contact us.

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This information which is based on Wisconsin law is issued to inform and not to advise. No person should ever apply or interpret the law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.