Thursday, January 3, 2013

When There Is A Will, But No Probate, What To Do...

There is something about this time of year that causes my phone to ring a bit more often.  Sure, there are the new years resolution calls from folks who are finally going to write a will.  But there also seems to be uptick in my new probates.  Winter, especially here in the Mid West can be harsh, too harsh for those who are older and ill.  During those phone calls some may ask -- my spouse died, is there anything I need to do?  Of course, being a lawyer, my response is "it depends".  No one situation is the same, but when a person has died it is important to asses the situation and determine what steps should be taken.

M. Gustafson Gervsi, 2012.  Winter arrived in Madison late in December. 
While lovely, it can also prove too taxing for those who are older and or ill.

For example, it is not uncommon for a person to die and there be no need to open a probate, especially in the case of married couples.  Through joint tenancy and beneficiary forms most if not all assets will likely pass to the surviving spouse.  However, even though no probate is needed, if a will existed, the person in possession or with knowledge of a will's whereabouts is required under Wisconsin law to file that will with the appropriate probate court.

856.05 Delivery of will to court.  (1) DUTY AND LIABILITYOF PERSON WITH CUSTODY.  Any person, other than a person namedin the will to act as personal representative, having the custody ofany will shall, within 30 days after he or she has knowledge of thedeath of the testator, file the will in the proper court or deliver itto the person named in the will to act as personal representative.Any person named in a will to act as personal representative shall,within 30 days after he or she has knowledge that he or she isnamed to act as personal representative, and has knowledge of thedeath of the testator, file the will in the proper court, unless the willhas been otherwise deposited with the court.  Any person whoneglects to perform any of the duties required in this subsection,without reasonable cause, is liable in a proceeding in court toevery person interested in the will for all damages caused by theneglect.(2) DUTY OF PERSON WITH INFORMATION.  Any person havinginformation which would reasonably lead him or her to believe inthe existence of any will of a decedent of which he or she does nothave custody and having information that no more recent will ofthe deceased has been filed with the court and that 30 days haveelapsed after the death of the decedent, shall submit this information to the court within 30 days after he or she has the information.(3) PENALTY.  Any person who with intent to injure or defraudany person interested in a will suppresses or secretes any will ofa person then deceased or any information as to the existence orlocation of any will or having custody of any will fails to file it inthe court or to deliver it to the person named in the will to act aspersonal representative shall be fined not more than $500 orimprisoned in the county jail for not more than one year or both.(4) LIABILITY FOR NEGLECT.  If any person has custody of anywill after the death of the testator and after a petition for administration has been filed, neglects without reasonable cause to deliverthe will to the proper court after he or she has been duly notifiedin writing by the court for that purpose, he or she may be committed to the county jail by warrant issued by the court and therekept in close confinement until he or she delivers the will asrequired.(5) APPLICABILITY OF SECTION.  This section applies to willsand information needed for proof of a missing will under s.
This means that if your spouse passes away and no probate is needed, it is a good idea to file the original will with the probate court in the county of residence along with a letter stating no probate is needed.  This will allow it to be filed and comply with statutory requirements.  Note, the statue has a 30 day requirement.  However, I have worked with cases where a will was not filed until nearly 10 years after death. The court does not make an issue out of it, but it could if an interested party felt wronged.

Remember, a blog is not an attorney and this does not constitute legal advice.  Please consult an attorney in your state for advice specific to your situation.

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