Common Disputes in Estate and Probate Law

 Posted on August 10, 2017 in Estate Planning

Litigation concerning the handling of a loved one’s estate can be some of the most emotional and contentious legal battles that take place inside the courtroom. Usually, there are multiple parties involved with strong opinions as to how the decedent's property should be handled.

An experienced probate litigation attorney can help protect your rights in this difficult time both in and out of the courtroom.

Procedures and Processes that May Be Involved

Under Wisconsin law, there are several types of probate proceedings. It is always important to understand which are implicated in your case in the instance of dispute.

• Informal Administration. This administration is performed without the exercise of continuous supervision by a court; rather the Probate Registrar is the supervising entity. It is generally utilized with assets titled in the name of the decedent and with a value greater than $50,000. This process available in cases with a will or without a will, so long as all relevant parties agree.
• Summary Settlement and Summary Assignment. These methods may be used when the assets of the estate less any debts of the estate do not exceed $50,000.
• Special Administration. This procedure is used in circumstances where there is no estate, when the estate is closed and the decedent needs to take some action, or if there is newly-discovered property of the estate.
• Formal Probate. This administration is performed under the continuous supervision by a probate court judge. Typically, this is used when the decedent died without a will (intestate) and the relevant parties do not agree to informal administration, although there are other circumstances that may require this type of administration. The petitioning party is required to have a lawyer in these cases.

It should also be noted that not every asset will go through the probate process. Generally, probate is used when the title of an asset needs to be changed from the decedent’s name to that of the beneficiaries. Typically, transfer of real estate into the name of the beneficiary(ies) or a third party buyer requires a probate proceeding when the real estate is titled in the name of the decedent.

There are numerous forms of ownership that have a mechanism to transfer ownership of the asset. These forms of ownership can apply real estate, bank or accounts, retirement accounts and life insurance policies. For example, an asset that is owned as “joint tenants with right of survivorship,” retirement accounts with designated beneficiaries, a payable on death (POD) designation for bank or investment accounts, assets owned by a revocable or living trust, and life insurance policies with beneficiary designations typically do not need to go through probate.

Types of Disputes

Disputes can include the following:

• Will contests, which may involve the will not following certain requirements as provided by law or may concern the existence of more than one will.
• Undue influence, which may involve the decedent being under the control of another at the time the will was signed.
• Competence, which involves the decedent’s mental state at the time the will was executed.
• Breach of fiduciary duty, which involves the executor’s failure to act according to the law in the best interests of the estate or the beneficiaries, such as wasting funds, selling an asset at less than its fair market value or delaying the distribution of assets.
• Asset disputes, which may involve identifying the assets that make up the decedent's property.

Call a Milwaukee, WI, Probate Lawyer

If you are involved in an estate or probate dispute, you should consider hiring a skilled lawyer in this field who can review your case and explain your options to you. Contact the experienced Milwaukee estate and probate attorneys at Gimbel, Reilly, Guerin & Brown, LLP at 414-271-1440 to schedule your first meeting.

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/867/07

https://docs.legis.wisconsin.gov/statutes/statutes/865/02

http://www.wripa.org/types-of-probate-proceedings.html