I've been reading through these Q. From what I can gather, any estate, even with a will, must go through probate court if it's value is ...

Question

I've been reading through these Q&As;. From what I can gather, any estate, even with a will, must go through probate court if it's value is over $100,000. and/or has some kind of home or property (land), cars, etc.. My will states that the home and vehicles should be sold, with proceeds added to the estate. I'm confused. I thought a willed estate could/would avoid probate court ... maybe I just don't understand the purpose of probate.

Answer

You are correct, you do not understand the purpose of probate, which is to change the legal title of assets (or funds from their liquidation) from the decedent to the heirs after paying creditors or other claimants who come ahead of one's heirs. WI requires a court order to accomplish this, which order is the objective of a probate proceeding. All WI wills therefore require a probate proceeding (or some substitute proceeding such as a summary assignment), before they can ever be implemented. If someone dies without owning any real estate or other titled assets requiring re-titling by a court, it is rarely worth the trouble and expense of fling the will, due to the expensive and lengthily probate court proceedings which that filing will initiate. Therefore, even though there is a state law requiring that original wills be filed after anyone dies, as a practical matter the filing rarely happens, due to the heirs' determination or agreement that there is no longer any need to file it. Non-titled assets, such as furniture, etc., can be transferred outside of probate in a quasi-legal fashion simply be delivering possession of them to the right person, making this litigation unnecessary. If you wish to avoid probate, a will is therefore not the best way to do that. Instead, you should consult with an experienced probate or civil litigation lawyer about a living trust, which does not require court proceedings, for any assets which are successfully transferred to the trust during one's lifetime. However, a pour-over will is still a good idea to pick up any assets which you have acquired after setting up the trust or forgotten to transfer into the trust during your lifetime. Talk to your lawyer about other ways to avoid probate if your financial affairs are relatively simple, since there are many, such as deed transfers during your life with reservation of a life estate, placing bank and financial accounts into a "pay on death" status, etc.

Do not assume that I am your attorney because of my response here. You can post comments/clarification requests here or, for other past answers, go to http://www.avvo.com/attorneys/53401-wi-jay-nixon-1529181/answers.html?sort=recency or www.jayknixonlaw.com. However, I will not be taking any action on your case unless you make additional arrangements. Answers may contain attorney advertising materials..