Timely Probate - Any penalties if not done?

[NBrazil]

What is the name of your state (only U.S. law)? Wisconsin

I've "heard" (am under the impression) that probate needs to be filled within a year of the death date. This time is rapidly approaching. The executor (a brother) seems to always come up with a reason to delay the process. Perhaps, in part, this is because the "estate" is pretty much worthless (all debt), and has two mortgages (one very much underwater) remaining (a third property was sold, owner-financed = estate financed). Still, there are issues to attend to.

Bottom line, does the law provide penalties if probate isn't filled within a year of passing? If so, what kind of penalties? (I'm just trying to get him to move on this because despite the debt, it may be possible to recover some funds by selling the other property - it is in Australia and would be hard to manage from the USA - and may be used to pay some of the debts with a little left over.)

I am assuming that Wisconsin law is used here as the deceased prime residency was in Wisconsin.

Thanks again.What is the name of your state (only U.S. law)?

 

[JETX]

I've "heard" (am under the impression) that probate needs to be filled within a year of the death date. This time is rapidly approaching.

That is correct. In Wisconsin, an estate can be closed any time after the final date to file claims has run and must be closed within 12 months of the date the probate was opened, pursuant to Supreme Court probate benchmarks.

Bottom line, does the law provide penalties if
probate isn't filled within a year of passing? If so, what kind of penalties?

Wisconsin Statutes:
862.17 Accounts; failure of personal representative to file.
If any personal representative fails to file the personal representative's account as required by law or ordered by the court, the court may, upon its own motion or upon the petition of any person interested, either order the personal representative to file the account by a day certain or the court may proceed under s. 857.09. If after having been ordered to file the account by a day certain, the personal representative fails to comply with the order, the court shall proceed under s. 857.09.

857.09 Procedure which may be followed when personal representative fails to perform.
If a personal representative fails to perform an act or file a document within the time required by statute or order of the court the court upon its own motion or upon the petition of any person interested may order the personal representative for the estate and his or her attorney to show cause why the act has not been performed or the document has not been filed and shall mail a copy of the order to the sureties on the bond of the personal representative. If cause is not shown the court shall determine who is at fault. If both are at fault, the court may dismiss both and then appoint a personal representative and appoint an attorney acceptable to the personal representative to complete the administration of the estate. If only the personal representative is at fault, he or she may be summarily dismissed and in that event the court shall then appoint another personal representative to complete the administration and close the estate. If only the attorney is at fault, the court may dismiss the attorney and instruct the personal representative to employ another attorney; if the personal representative fails to employ another attorney within 30 days, the court shall appoint an attorney. No other procedure for substitution of attorney is required in such cases. The procedure set forth in this section is not exclusive.

 

[anteater]

But what do you mean by "filled?" Completed and the estate closed?

 

[NBrazil]

But what do you mean by "filled?" Completed and the estate closed?

Ohhhh. Uhm, I'm not sure. I guess I meant the paperwork submitted for the process of probate and leading to the estate being closed. But your question implies that once begun probate can take longer than a year? If so, that would be a relief because I believe that the initial paperwork was submitted last January (but I'm not certain - we WILL be having a family pow-wow in November to see where it stands, no excuses of "but I'm too busy.").

A concern is that the will named TWO executors, one our brother, the other, his girlfriend and she is a bit of a nut case (to be technical). And what I'm reading from the statute is that if the brother doesn't fulfill his obligations in a timely manner, and is found at fault, another executor would be chosen. Well... since one has ALREADY been chosen I think the odds are that she would get the full responsibility (so far she has not wanted it, but with the dragging on, I could see her jumping on it, and that would be bad).

He keeps on saying "there's nothing in the estate of value," and "it is very complicated," when my other brother approaches him. From what I can gather the brother died with major debt and three mortgages (Wisconsin, Florida and Australia). Apparently the bill collectors are harassing the executor and I feel he isn't getting his money's worth if the attorney hasn't sent off the appropriate letters telling them that the estate has nothing to pay them with and not to contact him further. Besides, unsecured debt is, well... unsecured!

So I think it isn't as complicated as he lets on (although I heard he had a LOT of trouble convincing the authorities that my brother had indeed died when he travelled to Australia, despite having death certificates and all - seems they didn't believe him!). Maybe that's the kind of stuff that is "complicated."

So, two things (now that you brought it up), does the estate have to be CLOSED within the year, or just that the paperwork has to be started? And, if it is the former, what are the odds that given two executors exist, that if one is found to be negligent, that the duties would sort of automatically go to the other before appointing someone in the family?

Regardless, I appreciate the responses I've already received.

 

[NBrazil]

Doh...

Opps, I see that my question was answered... that the estate has to be closed in a year from opening probate (which I assume he did).

Yikes! Any provisions for the difficulties he is experiencing dealing with the international issues? He claims it could take years to settle them!!

 

[anteater]

I think that the operative word in JETX's reply is "benchmarks."

The Wisconsin courts don't want to see probate cases prolonged just because the personal representative is diddling around. But there are some cases that will take longer and I doubt that the courts are giving PR's the boot simply because the PR cannot complete a complex case in 12 months.

But your brother should expect to hear from the court and better have his explanation prepared.

 

[hopekendrick]

just giving advice

Does your deceased brother have kids? if so they should be and will be appointed as over the estate.He should have done had this compeleted, its not that complicated. If hes got property that has been sold or foreclosed on or whatever, then it needs to be done, before Jan. the court will be mad. A death certificate he cant shuck and jive any judge with, or any one else, it has the time date and place and county all listed on it and state, If he died in whatever city in Austraila then thats what it will say. He needs to sell the property there if he can or let them foreclose, for all you know he already could have let this happen and thats why he is avoiding the issue.But, yes come 2010 that judge will want it closed unless he has a very good reason, if he finds for anyreason that he is dragging his feet then he will appoint someone else to get it done by a certain date. i had my dads settled in 5 months. its not complicated if you know what you are doing. I would be having that little family pow wow as soon as possible and make him produce evidence as to what has happened to these properties, if theya re in foreclosure! sold the amount that was involved. I take it that he has been avoiding you all about this.

 

[JETX]

Does your deceased brother have kids? if so they should be and will be appointed as over the estate.

And of course, that is more CRAP from one of the forum idiots.
There is NO obligation for children to be appointed as 'personal representative' by the court.

The rest of this idiots rambling and incorrect post is not worth the time or energy trying to 'educate' him.

 

[NBrazil]

Communication works wonders

Using what I've learned here I emailed the brother and expressed my concerns and asked for an accounting of what he has been doing the last 10 months (in a respectful but firm way).

Now I know and I'm satisfied. Sometimes ya gotta just ask directly and not wait it out.

Wow the laws (British origin) are different in Australia and have had a tremendous impact on this. I learned that, in effect, due to dual citizenship and multiple residences this became effectively 3 probates (Wisconsin, Florida, Australia) with all the nuances and, yep, as he said, complications. (An amusing/not so amusing one was convincing the Australian authorities that my brother had actually passed on and that he was the executor! Seems the nominal paperwork wasn't enough for them to believe him first time through!) He is aware of the time issues, but has experienced many delays of the courts themselves, both here and abroad.

Still this site has been a help because it gave me a way to approach this. Simply asking for an update would have probably resulted in the same answer he gave to my other brother, and unsatisfying "I'm busy" and "there's nothing there." Now I see how he has been busy (and with probate issues). So by expressing concern for time constraints and the consequences, he felt obliged to open up with details.

And, actually, there is a "little" there, perhaps enough to cover his legal expenses and to distribute a stipend to us after the sale of an overseas property, and after paying off the LOC, debtors, lawyers, etc. The life insurance policy is the only "real money" there. But I don't want to get hung up on money, more concerned with ethics, but that's me.

Thanks.

 

[NBrazil]

Australian law regarding life insurance payout...

No payout allowed UNTIL probate is initiated. Go figure. Also, the value of the insurance payout IS considered part of the total value of the estate in Australia. Seems costs associated with filing/executing probate are a percentage of the total estate. It figures in what you pay the attorneys! Guess that is why you can't get at it until you file for probate. So, even a debt laden estate like my brother's now has "value" in the eyes of the court. Interesting. They get you coming and they get you going.