Attorney Thomas B. Burton answers the following question:
"What Are The Steps to File Will with Wisconsin Probate Court?"
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I'm Attorney Thomas Burton and welcome to today's episode of our popular Question and Answer Series.
Today's question comes from Wisconsin and the writer asked the following:
"What are the steps to file mom's will with Wisconsin probate?
It is a Pour Over Will."
So this is a great question in, to start off you hear the word 'Pour Over Will', to me what that tells me is that this is a will, we use the term 'Pour Over Will' in the Estate Planning world to talk about a short will that's designed to pour over assets into a trust. So if your mom has a pour over will, in my practice, if we execute a pour over will, it's always in conjunction with a trust and generally, the terms of the will are very short and they say if there's any asset I forgot about that or that I own that I do not have inside of my trust, upon my death, I pour it over into my trust to be administered by the trustee of my trust, according to the terms of my trust, at that time.
So what the pour over will is designed to do is to avoid a situation where you have some asset that you forgot to transfer into your revocable living trust and avoid having that not get administered by the trust. So what we want to happen with the trust is all the assets go into the trust either during life, ideally, or after death and then they flow through to the beneficiaries you designate in the trust as a private administration.
The example I often give to clients would be of an asset you later acquire after you sign your trust. Let's say you have a great aunt that passes away and leaves you a one-fifth interest in some hunting land, up north or cabin and you didn't even know you were named in her will and you received that interest, let's say 10 years in the future and today, you're signing your trust. Well let's say, you die shortly after. You had an illness at the time, her probate went for years, finally distributed to you and unfortunately you passed six months later and you never got that one-fifth interest in the land, re-titled, deeded into the name of your trust. Well then the pour over will would pour it over into your trust upon the death and ensure your wishes are still followed as expressed in your trust.
So this is a great reason to have a pour over will but why I went over that is if your mother had a pour over will, the process what that tells to me is that she had a trust plan set up. So I would look for the trust and see if there's any assets that are actually flowing through the will because when I do trust planning, the goal is to avoid probate completely and not have any assets passed under the will.
However the process for filing the the pour over will is the same as for regular will. You simply need to take the original will to the probate registrar in the county where your mother resided when she died. So whatever county she lived in, you take it to the probate registrar, usually in the courthouse, they will file the original will in the records and that's your duty, if you're the personal representative is to deliver the will within 30 days of your knowledge of their death to the probate registrar.
Now next, you figure out are there any assets we have to administer under the will. So like I was saying, if there is a trust plan and let's say the house was retitled into the trust and that's your mother's main asset and then she had some bank accounts that were also titled in the name of the trust and personal property that she assigned to the trust, in that situation and that's everything she owned at death, there's likely no need for a probate because everything passed, excuse me, non-probate under the terms of the trust and that's our goal with trust planning, is to avoid probate completely, save you the time, money, expense and fees of probate, after you're gone.
So on your end, I would first examine if we need to open a probate at all. Now if there is some asset that was forgotten to be placed into the trust like I discussed, then we may need to use the pour over will to get it into the trust for you to administer. But the limit in Wisconsin, for small estate, probate is $50,000. So if you have some asset that's below $50,000 and that's the only asset, it has to be the total of all assets that are non-probate, it's possible we could use a small estate transfer method instead of opening a full informal probate with the probate court.
So to answer your question, file the the will with the probate registrar, then you need to determine are there any assets that weren't passing either under the terms of the trust or by non-probate beneficiary designation and if so, what's the value of those assets. If the answer is more than $50,000, then you will need to file a full informal probate and I generally recommend working with an attorney to complete this paperwork because, we call it probate but to get it started, there's anywhere from six to eight different forms that need to be filed and notices sent out by mail and things like that. So there isn't just one thing to file but the easiest thing is to file the will, there's no fee even to do that. You deposit it with the probate registrar and then you've completed your duty, under the statute.
Now sometimes you know you have to do a probate right away and so they may be ready for you to file probate paperwork but in other instances, they understand you're just filing the will to complete your duty and then you can still do this analysis to determine if you need to do a probate based on the value of the assets and I recommend working with a qualified probate attorney in the county where you live to accomplish this.
Now if you can use that small estate method, that's also where someone, attorney could help you prepare the small estate affidavit, if the assets are under that $50,000 limit. So I'm just trying to make you aware of the amount and the limits because when someone comes into my office, that's the analysis I would do, I can't change those limits. So if if there's a bank account with $52,000 in it and no beneficiary designation that means we're gonna have to go to probate. I can't change the limit that the legislature has written, after the fact but if there's a bank account with only $2,000 in it, maybe we can use and that's the only asset passing outside the trust, maybe we can use that small estate method.
Now when I do trust planning at my office, I try to build in a variety of options and backup options to help make sure we don't need to go through probate after we've set up a trust plan and that's what I like about trust planning is if we do it right, there's so many different ways we set up the trust to be our main asset but I can also do other planning methods to try to help you avoid that situation I talked about where you later inherit something and it needs to go through the will but remember, we always have the pour over will there as a last backup option to get the assets into the trust and be administered according to your wishes and your desires.
So great question and thank you for asking, thank you for tuning in and we'll see you next time.
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