In Someone Else's Plan

Probate and Estate Administration

Table of Contents

What is Probate?

Probate is the Court process used to settle a person’s estate after death if the person had a Will or had no plan in place whatsoever. There is a common misconception that using a Will avoids the Probate process. However, simply stated, a Will is a set of instructions intended for the Probate Court to direct the distribution of a decedent’s assets. By planning with a Will, you are intending to use the Probate process for the administration of your estate. In general, the decedent’s assets are used to settle bills, debts, and final expenses. Then the remaining assets are distributed to the beneficiaries listed in the decedent’s Will. 

If your loved-one owned his or her assets through a well-drafted and properly funded Living Trust, it is likely that no court-managed administration is necessary. However, the Successor Trustee needs to administer the distribution of the deceased's assets.

The length of time needed to complete the Probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the Probate Court. 

Every Probate estate is unique, but most involve the following steps:

  • Filing of a petition with the proper Probate Court.
  • Notice to heirs under the Will or to statutory heirs (if no Will exists).
  • Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets. 
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.

Death with a Last Will and Testament

You have been named as Personal Representative in a Will, now what? In older Wills, a Personal Representative may be referred to as executor/executrix. Whether you were named as Personal Representative or Executor/Executrix, it is important to understand that simply being named Personal Representative in a Will does not give you immediate authorization to handle the estate of a person who has died.

Even if you were previously a Power of Attorney (POA) for that person, you no longer have those powers because Power of Attorney ends at death.

You must now use the court process known as Probate to initiate proceedings. The Court usually approves the named Personal Representative but they will still make sure the named person is appropriate.

The Process for Approval of a Personal Representative by the Court

The first step in any Probate is to file the Will with the Probate Court. Any interested persons must be served with notice of the proposed Personal Representative and be given the option to consent or object to the appointment of the proposed Personal Representative via waiver or court hearing. There is a built-in waiting window of 30 days to waive or object to the proposed Personal Representative. If all interested persons waive the objection, then the court can approve the Personal Representative prior to the 30 days. If there are no objections, the court can then approve the Personal Representative. Domiciliary Letters are then issued to the Personal Representative. Domiciliary Letters certify the authority of the Personal Representative, allowing them to sign and act on behalf of the estate. Until the Personal Representative has these letters to demonstrate authority to act on behalf of the estate, the estate is stalled and the process cannot move forward. Financial institutions and realtors will not allow for any transactions to take place until you provide Domiciliary Letters.

Once you are a court-approved Personal Representative with Domiciliary Letters, you may begin working through the Probate process to settle the decedent’s estate. This process may include matters such as:

  • identifying assets and which are subject to Probate,
  • dividing personal property,
  • paying debts,
  • preparing estate accounting,
  • filing taxes for both the decedent and the estate,
  • obtaining closing certification, etc.

Whether you go through formal or informal Probate, each process has strict deadlines for completing certain tasks and filing specific documents. The process has little room for error as they may cause major delays; it is best to hire an experienced attorney to guide you through this process to ensure accuracy and efficiency. 

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If the decedent owned real property in states other than which they lived, a secondary Probate will be necessary in each state property was owned. For this process, you will likely need to work with another attorney that is licensed in that state.

If the decedent owned property outside of Wisconsin, the Personal Representative should find an attorney in those other states. It is unlikely that the court will approve an out of state Personal Representative without council.

Death with No Last Will and Testament or Any Estate Planning

If a person passed away without a Will or any other Estate Planning documents like a Trust, or no one was named in any Estate Plan to be the Personal Representative, you will have to follow a similar Probate process as described above.

In Wisconsin, a default Will is established for everyone, however, it is in no way tailored to your situation. Remember, even if you were the Power of Attorney for someone before, the rights given to you to act on their behalf end when that person passes. A Personal Representative will still need to be named to settle the estate. If no Personal Representative is named in the Will a family member or friend may volunteer. If there is no volunteer, it is possible that a creditor may initiate the appointing of a Personal Representative. 

For estates of $50,000 or under, you often may be able to complete a form called a Transfer by Affidavit. This form allows for an heir, Trustee, or Guardian to distribute the decedent’s assets. A person signing off on a Transfer by Affidavit becomes responsible, agreeing to pay off the final expenses and debts, as well as ensuring the items are distributed to beneficiaries. When you sign the Transfer by Affidavit, you are liable for identifying all assets and satisfying all creditors (such as state recovery) and must provide a balance to all heirs, including heirs at law. 

If you are in a situation where you believe there may be conflict or family complications, we recommend seeking an attorney that specializes in Probate litigation.

If you personally have an issue to bring against the estate it is encouraged to pursue counsel to represent you personally.

Attorneys practice in different areas of the Probate process. Often transaction attorneys are experienced in litigation and therefore is recommended that you find a qualified attorney to guide you through the process, address conflict, and prepare for litigation.

Having separate attorneys to represent your personal interest and you as a Personal Representative is helpful in mitigating any conflict of interest. Although you may not think it’s necessary at first to have two attorneys it’s important to know that there is a difference between an attorney representing you as the Personal Representative looking to get the best value for the estate versus you as the beneficiary advocating for your individual best interest. It is advisable to have two attorneys in these instances.

Avoiding Probate

Unless Probate is necessary, most try to avoid it. Probate is a public process, so everyone can see how much you owned and how much you owed at the time of your death. Probate lasts an average of a year and there is also a cost for the process. For these reasons, it is understandable that most prefer to make the administration of their estate easier and faster.

Whatever method you choose, make an informed decision as to what is best for you and your family. Probate often gets a bad reputation, but it can be useful depending on your circumstances.

Related Article: How Much Does It Cost to Go through Probate?

Related Article: How Long Does Probate and Settlement Take?

When to Use Probate

There are times that it may be in someone’s best interest to have their estate go through Probate. It is a good idea to use the Probate process if your estate includes any of the following circumstances:

  • deficit estates (more debts than assets),
  • family conflict or a contested Will,
  • or minor children.

A Will is the only option available for parents of minor children to name Guardians in the event that both parents die prior to children becoming adults. The Court puts significant weight on those suggestions but has its own process to go through as well. The people named as potential Guardians must go through a lengthy vetting process to verify that they are the best option. After all, there may be things that the parents did not know about a friend or family member that could impact the Guardian’s fitness to raise children.


A Guardianship is a legal relationship that is created by a county circuit court upon proof that a person, or Ward, is in need of a Guardian. If the Ward is a minor, then a Guardian is needed until the child reaches adulthood. If the Ward is an adult, then the person will need to be proven incapacitated in some manner in order for a Guardian to be appointed. 

There are two types of Guardians: Guardian of the Estate and Guardian of the Person. A Guardian of the Estate is the person that is in charge of the Ward’s finances. Guardian of the Person is someone that is in charge of the well-being and care of the Ward. The same person can be both types of Guardians. A temporary Guardianship can be applied for to allow someone to act on behalf of a Ward for a period of time until a formal Guardianship hearing can take place. There are also permanent and temporary Guardians. A temporary Guardian is appointed to act until a permanent Guardian can be appointed or appointed for a specific purpose. A permanent Guardian is appointed to act for the Ward’s lifetime.

The process for being appointed a Guardian is rather lengthy and tends to be involved and expensive. It will likely include multiple attorneys, family members, doctors, and court appearances.

It is difficult emotionally and financially for a family, especially when the Ward is objecting to someone becoming a Guardian. At that point, it becomes a contested Guardianship where attorneys are appointed to argue issues and cross-examine involved parties. 

One of the best ways to avoid a Guardianship is through proper disability planning. These documents should be drafted by an Estate Planning Attorney and include specific powers to act on your behalf. However, these documents must be drafted and signed before the need for assistance arrives or a Guardianship process cannot be avoided. 

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Frequently Asked Questions

What Happens If Someone Objects to the Will?

An objection to a Will, also known as a “Will contest,” is a fairly common occurrence during the Probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does Probate Administer All Property of the Deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

Certain types of assets are what is called “non-probate assets” do not go through Probate. These include:

  • Property in which you own title as “joint tenants with right of survivorship." Such property passes to the co-owners by operation of law and does not go through Probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a Living Trust. Legal title to such property passes to Successor Trustees without having to go through Probate.

Do I Get Paid for Serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the Probate Estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

How Much Does Probate Cost? How Long Does It Take?

The cost and duration of Probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will, and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though Probate in about 9 to 18 months, assuming there is no litigation involved.

Probate Terms and Definitions



Last Will and Testament

instructions to the probate court regarding the naming of personal representative and disposition of assets

Living Will

advanced directive to physicians regarding end of life care


synonym for personal representative

Personal Representative

person in charge of estate administration through the court system

Interested Person

all individuals named in the will and all individuals who would be heirs under the laws of intestate succession


a person legally entitled to the property of a decedent under the default laws of the jurisdiction, usually a legal relative


the person that passed away whose property is subject to administration


when the decedent dies without an estate plan


all property and assets of a person held at death

Probate Estate

all property and assets subject to probate proceedings

Informal Probate

probate procedures that do not require hearings in front of a judge

Formal Probate

probate procedures that do require hearings in front of a judge

Secondary Probate

also referred to as “ancillary probate” this is another probate procedure, often in another jurisdiction where property is held, in addition to the primary probate 

Transfer by Affidavit

passing assets for small estates in lieu of probate proceedings

Power of Attorney

a document by which a person names an agent to act on their behalf often when the person becomes incapacitated


a person legally entitled to property from a decedent


an agreement about how property is to be managed and where/how/when it should pass to beneficiaries, generally without the need for probate court

Pour-Over Will

a will that names a person’s trust as the beneficiary of their probate estate


a person appointed to be legally responsible for a person (called a ward) who cannot act for themselves often because of incapacity or youth

Deficit Estate

an estate that has more debts than assets

Domiciliary Letter

letters of authority issued by the probate court to the personal representative