Death probate is a court proceeding that serves two primary purposes: 1) to make sure the creditors of a deceased person gets paid, and 2) to change title of the assets that are in the name of a deceased person. Many people are under the impression that a probate proceeding is not necessary if you die with a valid Last Will. However, if you die with a valid Last Will and you are depending on that will to transfer your assets at death, you are guaranteed that your estate will go through probate.
Assets that are held in the name of a valid living trust, that are transferred through joint tenancy (i.e., real estate or a bank account that is titled in the name of two or more individuals, as joint tenants), that have payable on death designations (i.e., a bank account with a “POD” designation), and that are transferred through other direct beneficiary designations (i.e., life insurance and IRA accounts with named beneficiaries) will generally pass outside of probate – and also directly to the named individuals, despite the terms of the your will. Any other assets that were titled solely in your name without any legal reference as to who inherits the asset at your death, will be subject to probate. These assets will be “frozen” until a court order is obtained granting a named individual (the “personal representative” or “executor” of your estate) with legal authority to manage the assets during the administration process. The only place to find this court order is in probate court.
The probate process can be complicated, and often requires the services of a qualified probate attorney. If you have questions regarding the probate process or would like to know how to avoid it, call us to schedule your free no-obligation consultation. Krueger Hernandez & Thompson SC has offices in Baraboo Wisconsin (Sauk County) and Madison Wisconsin (Dane County).