What is Probate?

The word probate describes the process of transferring certain property from a decedent to the heirs. Probate is not required in all deaths.

Some questions to ask to determine if probate is necessary include:

• Is there a will? If there is a will, even if probate is not required, it must be filed with the Register in Probate within 30 days of the decedent’s death.
• What assets does the decedent have? (real estate, stocks, bonds, bank accounts, vehicles, etc.)
• How are the assets titled? (joint tenancy, solely owned, marital, payable on death, etc.)
• Who are the legal heirs and beneficiaries of the decedent?

Types of Probate Procedures

We cannot provide you with legal advice. However, if you have general questions, please contact the Register in Probate Office at 715-261-1260.

Transfer by Affidavit (Under $50,000)

Transfer by Affidavit is used for solely owned property within this state valued under $50,000. See the State Bar of Wisconsin's website for more information on Transfer by Affidavit.

Summary Settlement and Summary Assignment

The Summary Settlement is used when the decedent is survived by a spouse and/or minor child(ren). The Summary Assignment is used if there is no spouse or minor child(ren). The value of the estate cannot exceed $50,000 after the expenses are paid. Summary Settlement does not require publication, but Summary Assignment does.

Formal Probate

This may be used if the decedent has $50,000 or more of assets. All hearings are held in front of the circuit court judge. An inventory must be filed, a notice is published in the newspaper, and the court insures that the matter is completed in a timely and proper manner.

Informal Probate

Informal probate may be used if there are $50,000 or more of assets and the will does not prohibit its use. All parties must agree to use this procedure and any party at any time may petition the court for Formal Administration. The personal representative is responsible for making sure all aspects of the administration are completed in a timely and proper manner.

Being a Personal Representative

The personal representative is acting in place of the decedent. You are expected to handle the assets of the decedent just as any prudent person would handle their own assets. A statement in a will about who should serve as personal representative does not automatically allow you to start performing the duties of a personal representative; the statement in the will is merely a nomination by the decedent. The court must appoint you before you assume the duties of a personal representative. The document that shows others you are appointed is Domiciliary Letters.

Serving as personal representative is a very important job. You may be required to post a bond to protect the assets in the estate if you do not do your job appropriately. If the nominated person representative does not live in Wisconsin, a surety bond is required along with a Resident Agent. You must keep all interested parties informed of the status of the estate proceedings and complete the estate in a timely fashion.

Your duties will include taking possession of all the decedent’s assets and filing an inventory including the date of death values of all assets you have in your control (the inventory must be filed within 6 months of the filing of the Petition for Administration). You will be starting a checking account where you can keep accurate records of income and expenses. You will give notice to creditors and may give notice to interested persons by publication in the newspaper. (The Wausau Daily Herald is the official Marathon County newspaper.)

You may be liquefying assets, selling real estate, running a business, insuring and keeping property in good repair. You will collect any income due to the decedent like interest, dividends, rent, etc. You will pay bills, settle proper claims or object to claims that are not appropriate.

There may be final and fiduciary tax returns to complete. You may be required to file a closing certificate for fiduciaries from the Department of Revenue. You are encouraged to utilize the services of a competent tax preparer or an attorney to help you with this aspect of the estate.

You will distribute assets according to the will and/or statutes and secure receipts from those receiving assets.

Forms, Checklists, and Resources

• Informal Probate Checklist
• Non Probate of Will
• Personal Representatives Guide to Informal Probate
• Petition and Order Waving Fiduciary Tax Return
• Special Administration Checklist
• Transfer by Affidavit
• Order to Examine Contents of Safety Deposit Box

Probate Fees

The Marathon County Probate office is required to charge the following fees pursuant to Sec. 814.66 of the Wisconsin Statutes.

Probate Definitions

Beneficiary: A person named in the will to receive an interest in property from a decedent.

Bequest and Devise: Used in a will to grant an interest in property.

Codicil: A written document made by the deceased making changes to an existing will.

Decedent: The one who has died whose estate is subject to administration.

Heir: A person, including a surviving spouse, who under state law is entitled to an interest in property of the decedent.

Interested Person: Includes one or more of the following: 1. an heir of the deceased if named in the will or not; 2. a beneficiary named in the will which may include a beneficiary of a trust and a nominated trustee; 3. the personal representative named in the will.

Intestate: An estate left by a person who dies without a will. Distribution of assets follows the statutes of intestate succession.

Issue: Children, grandchildren, great-grandchildren, etc.

Per Stirpes: Property is divided into equal shares for the decedent’s children; children of a deceased child share their parent’s share. (i.e., by right of representation)

Personal Representative: A person nominated in a will to administer estate affairs in probate proceedings sometimes known as executor (male) or executrix (female).

Probate: A court-supervised process to: 1. transfer assets of a decedent to heirs or beneficiaries; 2. determine and pay federal and state taxes; and 3. give notice to creditors.

Probate Registrar: The administrative officer appointed in each county to supervise informal probate.

Testate: An estate left by a person who dies with a will. Distributions of assets follow the will.

Testamentary Trust: An arrangement outlined in a will in which one party (sometimes a bank) holds and distributes property for the benefits of another.

Will: A document properly executed prior to death that directs distribution of property after death, nominates who will care for and distribute property. It may nominate someone to care for minor children and/or handle assets in a testamentary trust.

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