In this video, Attorney Thomas B. Burton answers the following question:
"How Long After Someone Dies Do You Have to File a Will in Wisconsin?"
Attorney Burton discusses the various time and filing deadlines for filing a Will in Wisconsin and also discusses the relevant Wisconsin statutes which govern the probate court process for filing a Will in Wisconsin.
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Hello, I am Attorney Thomas Burton and today’s question is the following:
“How long after someone dies, do you have to file a will in Wisconsin?”
So I see this question come up frequently, in my estate planning practice here, in Wisconsin and I wanted to reference for you today, the exact Wisconsin statutes that covers this topic. So if you're following along at your computer, you can Google Wisconsin statutes 856.05, and it's called ‘Delivery of Will to Court’ and I'll just run through it here with you.
‘Duty and liability of person with custody. Any person other than the person named in the will to act as personal representative, having custody of any will, shall within 30 days after he or she has knowledge of the death of the testator, file the will in the proper court or deliver it to the person named in the will to act as personal representative’. See Wis. Stat. 856.05(1)
So that's a lot of legalese there, but let me break it down for you. So saying ‘anyone who has possession of the will, custody of the will’, let's say the will was stored in their house, ‘shall deliver the will to the probate court within 30 days after they have knowledge of the death of the testator’. So the testator is the person who made the will and 30 days’ knowledge means sometimes you don't know someone died right away, right? But as soon as you learn of it, you have 30 days from that date. So let's say you were out of the country traveling and the person died last week, but you only learned it when you return while the 30 days would start when you learned it and you would think, ‘oh, I have my mother's will, I need to deliver it to the court’ or so it, if you're or you can deliver it to the person named in the will to act as personal representative and in Wisconsin, we call the person, you name some states called executor of your will, we call them the personal representative.
So you can also hand the will off to them but to be safe, you might want to give it directly to the Probate Court. Second, it covers, what a personal representative must do, any person named in the will to act as personal representative shall, within 30 days after he or she has knowledge that he or she is named to act as personal representative and has knowledge of the death of the testator, file the will to the proper court, unless the will has otherwise been deposited with the court. So I always recommend you, let the people know who you asked to serve as personal representative for your will.
But sometimes people are surprised, they didn’t know they were named in the will and the relative dies and their name comes up. So as soon as you find out that you are named as personal representative and you have knowledge of the death, then you should file the will with the court. So basically if someone else didn’t file it, you need to file it within 30 days of knowledge.
Next, any person, who neglects to perform any of the duties required in the subsection, without reasonable cause, is liable in a proceeding in court, to every person interested in the will, for all damages caused by the neglect. So, if you don't do it on purpose or delay due to neglect, you can be liable to the beneficiaries in the will, they can sue you for damages, whatever those may be and again here it says without reasonable cause, so let's say, you really were out of the country, for 2 months and you have no way of getting this knowledge, the court would likely consider that as a factor. But in general, if you have knowledge of someone dying and you know you are named as the personal representative or you know, you have their original will, you should deliver it to the probate court in the county, where the person who died resided. So wherever they resided at death, is generally where the probate will occur and if you know, they were living in, let’s say, Dane County at death, if you deliver the will to Dane County probate court, you will fulfill your duty, under this section.
Additional information in Wis. Stat. 856.05(2) is about someone who has information, any person having information, which would reasonably lead him or her to believe in the existence of any will of a decedent, decedent is the person who died, of which he or she does not have custody and having information that no more recent will has been filed with the court, and that 30 days have elapsed, after the death of the deceased, shall submit this information to the court within 30 days after he or she has the information. So again, they start when you learn the information. So if you think you know about some other will, you're supposed to inform the court of it even if you don't have custody.
So, there’s a lot of knowledge based requirements here. If you know something, then you have the duty to perform it and I don’t think a lot of people are even aware the statute. But I see this question come up a lot. So I wanted to run through the 30 day periods, and again, just, for each 30 days’ period, it is when that person becomes aware of the death of the testator. And again, the testator is the person who created the will.
Finally, there is a penalty for trying to hide a will, if you will, ‘Any person who with intent to injure or defraud any person interested in a will, suppresses or secretes any will of a person, then deceased or any information as to the existence or location of any will or having custody of any will, fails to file it in the court or deliver it to the person named in the will to act as personal representative, shall be fined not more than $500 or imprisoned in the county jail for not more than one year or both. See Wis. Stat. 856.05(3) So basically, if you know there’s a will and you are trying to conceal it, to keep other people from getting money named in the will type of thing. You can be liable $500 up to a year in jail and the other heir still have the ability to sue you for damages caused by the neglect. So don’t do it, don’t try to hide the will, deliver it to the probate court, do your duty after someone passes.
And again, in this 856.05, there’s even more here, I went through the highlights today. It's a little bit of a dense statute and a lot of legalese and old terms, but I hope this helps you understand it and helps you if you're dealing with this situation to fulfill your duty, under the will, to deliver it to the probate court.
So thanks for watching and we will see you next time.
© 2020 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.
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