Estates & Trusts
If the decedent owned property in their name alone without a listed beneficiary and the total net value of this property is in excess of $50,000.00, then the only procedures available to administer these assets is a formal probate administration or an informal administration.
If the decedent owned property in their name alone without a listed beneficiary and the total net value of this property is $50,000.00 or less, then these assets can be administered through a formal probate administration, an informal administration, a summary settlement, a summary assignment, a termination of joint tenancy or life estate, summary confirmation of interest in property, a determination of descent of property, or a special administration, which ever procedure best applies.
Formal Probate Administration: This probate procedure is a formal court proceeding which is heard by a Circuit Court Judge or a Circuit Court Commissioner. These proceedings require that the personal representative retain legal counsel. A formal probate administration can be used whether or not the net assets are above or below $50,000.00. This procedure will require a minimum of two court hearings, one to open the administration and one to close the administration.
Informal Probate Administration: This probate procedure is an administrative proceeding that can be used whether or not the net assets are above or below $50,000.00 and is very similar to a formal probate administration. The main differences are that an informal probate administration is before and managed by the Register/Registrar in Probate as opposed to a Circuit Court Judge or Commissioner. In addition the personal representative is not required to retain legal counsel. And finally this administration may or may not require any hearings.
An informal probate administration can be used whether or not a decedent had a Last Will and Testament at the time of his/her death. If the decedent did not have a Last Will and Testament, then an informal administration can only be used if all the heirs at law sign a waiver and consent stating that they agree to the use of an informal administration and they all agree on who will serve as the personal representative.
Summary Settlement: A summary settlement is a formal procedure that can only be used if one of the following two scenarios apply:
1. The decedent’s estate, less the amount of the debts which any property in the estate is security, does not exceed in value the costs, expenses, allowances, and claims of the decedent’s estate; or
2. The decedent’s estate, less the amount of the debts which any property in the estate is security, does not exceed $50,000.00 in value and the decedent is survived by a spouse or domestic partner, or one or more minor children, or both.
A special administrator can be appointed in a summary settlement to facilitate the transfer of property to the spouse, domestic partner, and/or minor child(ren). Legal counsel is not required to be retained by anyone in order to use this procedure.
Summary Assignment: A summary assignment is a formal procedure that can only be used if the estate, less the amount of the debts which any property in the estate is security, does not exceed $50,000.00 and the estate cannot be summarily settled.
A special administrator can be appointed in a summary assignment to facilitate the transfer of property.
Termination of Joint Tenancy and Life Estate: A termination of joint tenancy and life estate is a formal procedure that can be used if a decedent, at the time of their death, had an interest in a joint tenancy or a life estate. Any person interested in the property may petition the court to issue a certificate terminating the joint tenancy or the life estate. The petitioner shall obtain a certified copy of the certificate and record it in the Register of Deeds for the county in which the property is contained.
This can also be accomplished administratively by recording an application, supplied by the Register of Deeds, with the Register of Deeds for the County in which the property is contained.
Summary Confirmation of Interest in Property: A summary confirmation of interest in property is a formal procedure that can be used if a decedent, who immediately prior to death, had an interest in survivorship marital property or an interest in property passing under Wisconsin Statute 705.10(1) or 705.18(2). Upon petition of the decedent’s spouse, a beneficiary of a marital property agreement, a transfer on death (TOD) beneficiary or a beneficiary of a transfer under Wisconsin Statute 705.10(1) or 705.18(2) to the court of the county of domicile of the decedent the court shall issue a certificate under the seal of the court. The certificate shall set forth the fact of the death of the decedent, the termination or transfer of the decedent’s interest in the property, the interest of the petitioner in the property and any other facts essential to a determination of the rights of the persons interested in the property.
Determination of Descent of Property: A determination of descent of property is a formal procedure by which property can be transferred by the court to persons entitled to interests in the property of the decedent. This procedure can only be used if six (6) years or more have past since the death of the decedent, the decedent died intestate (without a Last Will and Testament), and leaving an estate which the Waukesha court has jurisdiction over.
Upon the filing of a petition of a person interested, the court can issue a certificate, without notice, or a judgment, with notice, determining the heirs and their respective rights in the property. The certificate or judgment shall also name the parties entitled to interests in the property of the decedent. A hearing is required whether there is notice or not. Once the certificate or judgment is issued and if it relates to real property, then a certified copy of the certificate or judgment is required to be recorded with the Register of Deeds of the county in which the real property is located.
Special Administration: A special administration is a formal procedure that is basically used if no other probate procedure fits the fact scenario of the estate. Special administrations can be used for a wide range of different circumstances. This procedure can also be used in association with other procedures that do not require the appointment of a personal representative. The Wisconsin Statutes spell out specific grounds for the appointment of a special administrator, but the court also has discretion to appoint a special administrator when it deems it appropriate.
Transfer by Affidavit ($50,000 and Below): The transfer by affidavit ($50,000 or below) is an administrative document by which a person that meets the qualifications of the statute can collect the assets of the decedent.
If the gross estate of the decedent, subject to administration, is $50,000.00 or less, then an heir at law, trustee of a revocable trust created by the decedent, a person named in the Will to act as personal representative, or a person who was guardian of the decedent at the time of the decedent’s death may use the transfer by affidavit to collect any assets that were in the decedent’s name alone without a listed beneficiary.
This form is not a form that is filed with or managed by the Register in Probate or the Probate Court.
Trust Administrations: The Probate Court has exclusive jurisdiction regarding any action concerning a trust administration. Usually trust matters are handle outside of the court realm. But there are circumstances that arise within a trust administration when an interested person in a trust will request the court to intervene in the administration and make a finding or issue an order regarding the interpretation or validity of terms of the trust; removing or appointing a trustee, directing party, and/or trust protector; reviewing or approving fees of a trustee, directing party, and/or trust protector; approving interim or final accountings; ascertaining trust beneficiaries; determining the existence or nonexistence of an immunity, power, privilege, duty, or right; Requesting trustee instructions; obtaining a declaratory judgment; seeking reformation or other equitable relief; resolving a question that arises in the administration of the trust, including construing the trust instrument; and determining any other matter concerning a trustee, directing party, trust protector, or beneficiary.
