How Is Guardianship Determined During the Wisconsin Probate Process?

 Posted on February 09, 2021 in Estate Planning

In Wisconsin, one important matter that often must be settled during the probate process is the legal guardianship of minor children who survive their parents. While it may be difficult or uncomfortable for parents to think about this scenario, there are things that they can do during their lifetime to make this process as smooth as possible if it does become necessary. In some cases, however, the determination of guardianship may be more complicated and must be resolved through probate litigation.

How Do Wisconsin Courts Appoint a Child’s Guardian?

In most cases, if only one of a child’s parents passes away, the other parent will remain the child’s legal guardian and maintain all parental rights. However, if both parents are deceased, and the child has not reached the age of 18 and legal adulthood, a legal guardian must be appointed in probate court.

It is important to note that there are two different types of legal guardianship. Guardianship of the person includes legal custody of the child and the ability to make important decisions regarding the child’s life, while guardianship of the estate includes the ability to make decisions regarding the child’s assets, including those left to the child through their parent’s will or a trust. The same person may be appointed as both guardian of the person and guardian of the estate, but it is not uncommon for two different people to be appointed in these roles.

One of the first things the probate court will consider when appointing a guardian is whether the parents have nominated a guardian in their will. If so, the court will usually follow the parents’ wishes, as long as they are in the child’s best interests. However, if no guardian has been nominated by the parents, the court will likely need to consider petitions from others who have an interest in the child’s guardianship.

In Wisconsin, a child who is at least 12 years old can nominate his or her own guardian, and other people may also file a petition for guardianship. Often, petitioners will include relatives of the child or close family friends. In these cases, the court will appoint a guardian ad litem to represent the child’s best interests and investigate circumstances relevant to the proposed guardianship, including by meeting with the child, the petitioner, and any other interested parties. Proposed guardians will be required to attend a hearing in which the court will seek information to determine whether the guardianship is in the child’s best interests, as well as whether anyone wishes to contest the petition.

Contact a Milwaukee County Probate Litigation Attorney

If you are a parent seeking to ensure that your will includes a nomination of your guardian, or if you are looking for legal representation as you petition for guardianship and prepare for your hearing, the attorneys at Gimbel, Reilly, Guerin & Brown, LLP can help. Contact a Milwaukee, WI guardianship lawyer today at 414-271-1440.

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/48/xx/9795

https://docs.legis.wisconsin.gov/statutes/statutes/54