Heir Rights (WI)
As an heir, you likely have questions about the inheritance process in WI, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under WI Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, WI estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- WI Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see WI Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See WI Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
WI Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Wisconsin, small estates can avoid full probate via small estate affidavit or summary settlement. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a Wisconsin estate has <$50,000 of assets, you can use the small estate process to settle an estate with no court involvement.
Requirements
To use the small estate process, the gross value of estate assets must not exceed $50K.
In determining the gross value of the assets (i.e., personal property and real estate), you should value assets as of the date of death, and ignore any unsecured debts. Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate process:
- Prepare a Small Estate Affidavit form
- Have the affidavit notarized, and attach a copy of the death certificate
- Notify all heirs if you intend to use the affidavit to collect real estate, delivering them a copy of the affidavit at least 30 days beforehand
- If the decedent received state-provided medical services, you must notify the Department of Health Services by sending a copy of the affidavit via certified mail, return receipt requested.
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Obtain possession of the property by presenting the affidavit to the current custodian of the property
(If you were named as the personal representative in the will, but are not an heir, the custodian must wait 30 days after receiving the affidavit to give you the property) - Settle the estate in the normal way (pay estate debts, distribute remaining assets)
- If you are distributing real estate, submit a copy of the affidavit (and any notices from the previous steps) to the county office of the register of deeds
See WI Stat § 867.03.
Summary Settlement
Summary Settlement also applies to estates worth <$50K, but involves the court system, which may make things easier to enforce.
Requirements
You can use summary probate (also known as simplified probate) if the qualified value of the estate is <$50,000, and the decedent is survived by a spouse or minor children.
You can also use summary probate if the estate gross value is less than the sum of items 1-8 in the claim priority list above.
In determining estate value, you should value assets as of the date of death. Ignore any unsecured debts (such as credit cards), but do account for secured debts such as mortgages (i.e., if a house is worth $150K and has a $130K mortgage, the house would contribute $20K to the estate value). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To settle an estate via summary probate:
- Submit a Petition for Summary Settlement to the court (see below)
- The court may require you to obtain a bond to protect the estate
- The court may require you to give notice of the petition to interested parties
- If the decedent received state-provided medical services, you must notify the Department of Health Services by sending a copy of the petition via certified mail, return receipt requested.
- When at least 30 days have passed since any required notices were given, the court will order the transfer of all estate assets to the proper recipients (giving everything not otherwise assigned to any surviving spouse or minor children, other than amounts owed to the Department of Health Services)
- If the estate includes real estate, submit a copy of the order to the county office of the register of deeds
- The court may also order you to notify any unpaid creditors with information about the disposition of the estate
See WI Stat § 867.01.
Summary Assignment
Summary Assignment is very similar to Summary Settlement, but attempts to pay creditors.
Requirements
You can use summary assignment if the qualified value of the estate is <$50,000 and summary settlement can't be used. In determining estate value, you should value assets as of the date of death. Ignore any unsecured debts (such as credit cards), but do account for secured debts such as mortgages (i.e., if a house is worth $150K and has a $130K mortgage, the house would contribute $20K to the estate value). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To settle an estate via summary probate:
- Submit a Petition for Summary Assignment to the court (see below)
- The court may require you to obtain a bond to protect the estate
- The court may require you to give notice of the petition to interested parties
- If the decedent received state-provided medical services, you must notify the Department of Health Services by sending a copy of the petition via certified mail, return receipt requested.
- Publish a Notice to Creditors as a class 1 notice (this differs from the standard SC Notice to Creditors)
- When at least 30 days have passed since any required notices were given, the court will order the transfer of all estate assets to the proper recipients, including creditors and heirs
- If the estate includes real estate, submit a copy of the order to the county office of the register of deeds
- Mail a copy of the court disposition order to all interested persons whose addresses are known
See WI Stat § 867.02.
Claim Priority
When settling the estate, you must allocate estate assets in the following priority order:
- Costs and expenses of estate administration (including Executor Compensation in WI)
- Reasonable funeral and burial expenses
- WI family allowances
- Reasonable and necessary expenses of the last sickness of the decedent
- All taxes owed by the estate
- Up to $300 in wages, including pension, welfare and vacation benefits, earned within 3 months before the death of the decedent
- Family allowance for insolvent estate
- All other debts
- Distributions to heirs
See also Resolving Debts and Making Distributions.
Court
In Wisconsin, the local Circuit Court handles wills and estate matters.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the WI estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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