Do I Need To Start A Probate?

Posted on Mon Jan 20th, 2020 at 11:31 am

Do I Need To Start A Probate?

This is one of the most common questions heard from the surviving spouse or relatives of a deceased person.   A common misconception is that if someone dies with a will a probate is not necessary.  A valid will does not, in and of itself, determine whether a probate is needed.  In most cases the assets left behind are the most important factor. 


The assets of a deceased person can pass either through probate or outside of probate.  Assets that pass outside of probate are typically those titled in a certain way, or contain some type of “beneficiary” designation.  For example, a jointly owned account becomes the property of the survivor upon the death of the co-owner.  Banks usually do not require much more than a certified copy of the death certificate to transfer these accounts.  Other examples of property passing outside probate are: life insurance, brokerage accounts, and retirement plans that have a named beneficiary; bank accounts that contain a payable on death (“POD”) beneficiary; assets held in trust with a named beneficiary, and real estate titled jointly or titled with a transfer on death (“TOD”) beneficiary.  In general, these type of assets can be transferred directly to the joint owner or named beneficiary without the need for a probate.


On the other hand, assets of a deceased person that are titled solely in the deceased person’s name, and which do not contain any kind of “beneficiary” designation, may be subject to probate.  A common example is a house titled solely in the name of the deceased person.  Because there is no legal mechanism in place (such as joint ownership or a TOD provision) to transfer the house, the deceased remains the legal owner of the house.  But since the legal owner is now deceased, there is no one who can legally sell the house or transfer it to the heirs or will beneficiaries.   The deceased owner needs a legal representative to carry out his wishes.  Hence, the need for probate.  That process results in a court appointed “Personal Representative” (sometimes called an “executor”) who has the legal authority to act.  This same thing is true for any other solely owned asset (like a solely owned bank account).


If a deceased person’s total solely owned property is $50,000 or less a probate can be avoided by use of an affidavit.   The rules about who can use the affidavit and how it has to be used will be the subject of another post. 


Things become more complicated if there is a surviving spouse.  Wisconsin became a marital property state in 1986.  This law is quite complicated.  There is no way a post such as this can even scratch the surface of what this law covers.  The point to keep in mind is that the assets of both spouses, the deceased and the survivor, may end up in the probate process when the first spouse passes away.   Only a careful examination of all the assets, by an experienced attorney, will answer that question.


This is only a bare thumbnail sketch of the considerations that go into play when determining whether a probate is necessary.  Every case is unique.  You should not rely on this sketch to determine whether a probate is necessary in your case.   The best approach is always to consult with an attorney who can analyze the actual situation. 

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