What do I do if my mother died and I am the legally appointed executor of her Will?

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What do I do if my mother died and I am the legally appointed executor of her Will?

The only personal property she has is a checking account. Her account has been designated after she dies to be transferred to the estate. I cannot use this account to pay for her outstanding bill because I was told by the bank that I need to fill out a domiciliary letter to go through probate court. I have an over bearing brother who does not want me to use a lawyer because he wants me to use the assets of the estate to fatten his pocket book. Can you help me?

Asked on June 21, 2013 under Estate Planning, Wisconsin


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

Answered 9 years ago | Contributor

I am so sorry for your loss.  I am assuming here that this estate will be probated in Wisconsin, the state you listed when you asked the question. Now, Wisconsin has two types of probates: formal and informal.  A formal probate requires that you have an attorney.  An informal probate does not require an attorney but you can use one at any time should you so choose. Here is some info from the Wisconsin Courts:

"Informal probate is the administration of the decedent’s estate, intestate (without a will) or testate

(with a will), without the exercise of continued supervision by the Court. Informal administration

proceedings are Circuit Court proceedings under probate jurisdiction and administered by the

Probate Registrar.


Informal Probate may be used if there is $50,000 or more of assets, and the Will does not prohibit

its use. An attorney is not required but may be used. All parties must agree to use this procedure,

and any party at any time may petition the court for Formal Administration (an attorney must be hired

and all hearings are then held in front of the Circuit Court Judge). 


An Inventory must be completed and a notice is published in the newspaper. There may be final

and fiduciary tax returns to complete. You will be required to file a closing certificate for fiduciaries

from the Department of Revenue. You are encouraged to utilize the services of a competent tax

preparer, accountant, or an attorney to help you with this aspect of the estate."


Now, if your Mom's assets fall under a certain amount then you could proceed by Small Estate.  Here is the info:


"If there is a WILL, State law requires that it be filed. Wisconsin Statutes allows for the transfer of a

small estate to an heir of a decedent, or to the decedent’s guardian, without the necessity of

going through a probate proceeding. When a decedent leaves solely owned property with a total

value of $50,000 or less, the State form, PR-1831, Transfer of Affidavit ($50,000 and Under) can

be used. This form is available online at www.wicourts.gov. The Transfer by Affidavit is not filed or

processed by the Register in Probate Office. It is a form completed by an heir, guardian or trustee

which is presented to the institution or other entity holding an asset of the deceased."

The bottom line here is that you must probate the Will under Wisconsin law and really if you should choose to hire an attorney  - even on a limited basis - then you can if you are the named fiduciary.  I would at least hire one to consult with and for a flat fee (the estate will pay the fee).  You may have some leverage here if you are permitted a fee under the Will.  As long as it does not state that you waive it then you can have it.  You can tell your brother you will waive your fee and put it toward the attorney instead if you choose.  That should get him off your back.  Good luck and look here. 




IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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