Deciding who gets what without probate

My father passed away without a Will that we can find. However, we believe there is one. He was married for 5 months prior to his death. He has an estate under $50,000. Can we go to civil court and have the assets divided

between his spouse and 2 children? His wife is not a very nice person and feels she is entitled to every single thing he owned, and we do not want to open an estate/probate in fear she will damage or get rid of his things.

Asked on October 9, 2017 under Estate Planning, Wisconsin

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

I am so sorry for your loss and for the situation as it stands.  No, Civil Court will not entertain your request.  Probate Court is the only place that has jurisdiction over the proceedings. If you die without a Will in Wisconsin, and the children are not children of the present spouse,  your spouse receives half of your separate property and your children receive your half of your community property and half of your separate property. So his Wife would be wrong.  And if she damages any asset in his estate then that is called "dissipation" and she could be liable for that damage.  Good luck. 


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