Wisconsin

Wisconsin estates are handled by the Circuit Court in the county where the deceased lived,
through the office of the Register in Probate. Which official you deal with depends on the
route.

Informal or formal

• Informal administration is conducted before the Register in Probate, not a judge. It
  is the normal route for an uncontested estate and keeps the process largely administrative.
• Formal administration — which is everything else — goes before a circuit judge or court
  commissioner, and is used where there is a dispute, an unusual issue, or a reason the
  Register cannot act.

Transfer by affidavit

Where the whole estate is worth $50,000 or less, Wisconsin allows assets to be transferred
by affidavit with no court administration at all. Confirm the current threshold, but check
this first — a great many Wisconsin estates qualify and never need probate.

Marital property changes the arithmetic

Wisconsin is a marital property state — effectively community property, and the only such
state outside the west and south-west. Property acquired during the marriage is generally owned
half by each spouse, so the surviving spouse already owns their half and the estate is often
half the size the family expects.

Wisconsin couples also commonly sign a marital property agreement with a "Washington will"
provision, which can pass everything to the survivor outside probate on the first death. If
one exists, find it before opening an estate.

No death tax

Wisconsin levies neither an estate nor an inheritance tax. Only the federal return can arise.

Before distributing

Publish the notice to creditors, let the claim period run, settle the final income tax returns,
and file the closing documents with the Register in Probate.

A Wisconsin will must be in writing, signed by the testator (or by another at their
direction and in their presence), and signed by two witnesses who each witnessed the signing
or the testator's acknowledgement. The testator must be 18 or older and of sound mind.

Wisconsin does not recognise holographic wills

A handwritten will is fine if two witnesses signed it. Unwitnessed, it is not valid in
Wisconsin — the handwriting counts for nothing on its own.

Wisconsin does have a harmless error provision allowing a court to admit a document that
falls short of the formalities where there is clear and convincing evidence it was intended as a
will. Like every such provision it is a rescue that costs far more than doing it properly, and
it is not something to rely on.

Understand what the will actually controls

Because Wisconsin is a marital property state, a will disposes of the deceased's individual
property and their half of the marital property — not the whole of what the couple owned.
Spouses who assume otherwise routinely draft wills that do not do what they think.

A marital property agreement can override the will entirely for assets it covers. If you have
one, the will has to be drafted alongside it rather than in isolation.

Practical points

• Name an alternate personal representative, and consider agreeing their fee in writing —
  Wisconsin's default is unusually low, see the compensation topic.
• Ask for informal administration and waive bond.
• Consider a transfer on death deed for real estate, available in Wisconsin.
• A surviving spouse has an elective right whatever the will says.
• Review after a marriage, divorce, birth or a move to Wisconsin.

Yes, and Wisconsin's default rate is strikingly low by national standards.

Two per cent

Under Wis. Stat. § 857.05 the personal representative is allowed a commission of 2% of the
inventory value of the property, less any mortgages or liens, plus net principal gains
during administration.

Two per cent. Most states allow something between three and five, and several allow a
percentage of receipts and disbursements. Wisconsin allows two per cent of what the estate was
worth. Confirm the current figure against the statute.

The written agreement alternative

The statute expressly permits a different rate agreed in writing — either between the
deceased and the personal representative during life, or between the personal representative
and the people who take the majority interest in the estate.

That second route is the practical one. Where the estate is genuinely demanding, the answer is
not to take 2% and resent it, nor to take more and hope — it is to agree a rate in writing
with the majority beneficiaries before doing the work. Wisconsin has built the mechanism into
the statute; use it.

Extra for extraordinary services

The court may also allow further compensation for services beyond the ordinary, on application.

If the will fixes the figure

A will provision governs where the representative accepts on those terms.

Tax

Compensation is taxable income; an inheritance is not. With no Wisconsin estate or
inheritance tax for the fee to be deducted against, a family representative who is also a
beneficiary usually gains nothing by taking one — and at 2% there is often little to gain
anyway.

A Wisconsin personal representative is reimbursed from the estate for the reasonable expenses
of administration, separately from the 2% commission. Given how modest that commission is,
claiming expenses properly matters more here than in most states.

Normally claimable

• Funeral, burial or cremation, the headstone, and a reasonable reception.
• Register in Probate filing fees, certified letters, certified death certificates, and
  publication of the notice to creditors.
• Attorney's fees, and accountant's fees for the final Form 1040 and any Form 1041.
• Appraisals of real property, farmland, dairy or farm equipment, vehicles, firearms, boats and
  collections.
• Carrying costs on estate property until sale: insurance, property tax, utilities, security,
  maintenance, lawn care and snow removal.
• Winterising a property — keeping heat on and draining lines. A Wisconsin house left cold
  through January is a burst-pipe claim, and prevention is far cheaper than the repair.
• Cleaning, clearing, storing, moving and shipping contents, including a Northwoods cabin.
• Travel on estate business at a reasonable rate.
• Bond premiums where bond was not waived.

Normally not claimable

• The representative's lost wages, meals near home, or personal spending.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account and run everything through it. Wisconsin's commission is
calculated on the inventory value less liens, plus net principal gains, so the inventory you
file is doing double duty — it fixes your fee as well as reporting the estate. Get the valuations
right at the start.

Wisconsin's informal administration before the Register in Probate, and its generous
transfer-by-affidavit threshold, mean many estates here need little help and some need no
probate at all. The case for a professional is correspondingly narrow — and the 2% statutory
commission means professionals will usually want a written agreement for more.

Consider a professional when

• Marital property characterisation is unclear — a couple who moved to Wisconsin from a
  common law state, a second marriage, or property commingled over decades. Getting the
  half-and-half line wrong misstates what is even in the estate, and Wisconsin is the only state
  in its region where this arises.
• There is a marital property agreement whose interaction with the will needs untangling.
• The estate holds a dairy or crop farm, an operating business, or rental property. Farm
  succession between farming and non-farming children is the classic Wisconsin dispute.
• A Northwoods cabin is to be divided among siblings — the same category of problem that
  cottages create in Michigan, and better solved by a plan than by leaving the executor to
  referee.
• There is conflict among the beneficiaries, which pushes the estate from informal to
  formal administration before a judge.
• A beneficiary is a minor or incapacitated, so a trust runs for years.

What it costs

Corporate fiduciaries will generally not act for 2% and will want a written agreement with
the majority beneficiaries at a negotiated rate, often with a minimum annual fee. Attorneys bill
hourly. Settle this in writing at the outset — the statute anticipates exactly that conversation.

Middle ground

Check first whether transfer by affidavit avoids probate altogether. If not, appoint a family
member, ask for informal administration and no bond, and let them retain an attorney at the
estate's expense.