Probate is the process in which the court oversees the distribution of one’s property after death. State laws govern probate. Wisconsin has two types of probate processes: informal and formal. Informal probate can happen when no interested parties dispute the distribution of the estate, and the county register supervises the relatively simple process. When a dispute arises, however, then the matter must go before probate court for formal probate. Wisconsin probate law sets forth the procedures for challenging a will.
Grounds to Challenge a Will
Wisconsin law presumes that a legally executed and written will is valid. However, heirs or other interested parties may challenge the validity of a will. The two common legal grounds for challenging a will are that the testator was not mentally competent to make the will and that someone exerted “undue influence” over the testator. In either scenario, the basis for the challenge is that the will does not reflect the true intentions and choices of the testator. The challenger, in most cases, has a difficult burden to prove.
The person who drafts a will is referred to as the "testator"; once the testator passes away, the law refers to him as the "decedent." Typically, the testator appoints an executor in the will to administer the estate and guide it through the probate process once the testator dies. When a person dies without a will -- also called "intestate" -- Wisconsin courts usually appoint a personal representative to act in the estate’s best interest.
Register in Probate
Each Wisconsin county has a Register in Probate official. The executor -- or personal representative -- must file the will with the Register in Probate within 30 days of the testator’s death, as well as an application for probate in the county in which the decedent resided. The Register in Probate then sends out notices to all interest parties, which typically include the estate’s creditors, the decedent’s heirs and any named persons in the will. In addition, the court orders the executor to publish notice of the probate action in a local newspaper.
The Register in Probate's notice sets a deadline of between 3 and 4 months, pursuant to Wisconsin law, as the time limit for heirs to challenge the validity of the will. To challenge the will, the interested party must file form PR-1819 with the Register in Probate and pay the filing fee, which as of November 2010 is $3. The interested party must serve -- mail or deliver -- the claim to the Register, the estate’s executor and any estate attorney.