Many misconceptions exist about how the probate process works in Wisconsin. These myths can be harmful, especially when they cause families to miss important planning, resulting in unnecessary delays or complications. Below are some of the most common misunderstandings, and some facts to set them straight:
- Myth: Having a will means there will not be a probate.
Fact: A will alone does not avoid probate. It simply tells the court how to distribute your assets after death. Probate is still required to validate the will and carry out its instructions.
Without a will, the court applies Wisconsin’s intestacy laws — a default set of rules created by the legislature to reflect what most people would likely want. A properly executed will avoids that default path by specifying your exact wishes.
There are additional tools that can help assets bypass probate entirely, including marital property agreements, beneficiary designations, trusts, transfer-on-death accounts and deeds (TOD), and more. An estate planning professional can help you choose what fits your specific goals and circumstances.
2. Myth: The probate process takes forever, often several years or more.
Fact: While probate can take several months, it can sometimes be resolved in as little as six to nine months in Wisconsin. The timeline depends on factors like the size of the estate, whether there is a will, the agreement of the heirs, outstanding debts, and whether property (like a house) needs to be sold.
By law, a notice to creditors must be published in a local newspaper for three consecutive weeks. After that, creditors have 120 days to submit claims. If the estate’s inventory is completed and there are no disputes, probate can often close shortly after the creditor period ends, as long as the proper tax filings have been completed.
3. Myth: Debts disappear completely upon someone’s death.
Fact: Unfortunately, debts do not vanish. As stated above, the estate must notify creditors through legal publication, and those creditors have 120 days to file claims. If verified, those debts are paid from estate assets before any distribution to beneficiaries. If there are not enough assets to cover debts, beneficiaries may receive nothing, but they are not personally liable for those debts.
4. Myth: Probate is so expensive; there will be nothing left after it is finished.
Fact: While there are costs involved in probate such as court filing fees, executor commissions, and legal service fees, they rarely consume an entire estate. These costs are deducted before the remaining estate is paid out to beneficiaries.
For smaller estates (under $50,000), Wisconsin allows for a simplified process using a small-estate affidavit, which avoids a full probate proceeding and dramatically lowers costs.
The costs associated with a small-estate affidavit are typically less than a probate action. With proper estate planning, families can reduce the size of the probate estate and keep more assets outside of probate, minimizing both cost and hassle.
5. Myth: Only a trust can avoid probate.
Fact: Trusts can be a powerful tool, but they are not the only way to avoid probate. Tools like beneficiary designations, joint ownership, transfer-on-death accounts, and marital property agreements can also keep certain assets out of probate.
Trusts can be ideal in some situations, especially for privacy, asset control, or complex family needs, but they are not necessary for every family.
Probate does not have to be a mystery, or a complicated hassle. While it can seem daunting at first, understanding the process allows for you to separate fact from fiction to make informed decisions to protect both your assets and loved ones. An estate planning attorney can help determine which strategy makes the most sense for your goals and estate planning needs. Please contact our office to meet with one of our experienced estate planning attorneys.