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  • Kirsten Hildebrand

Will, Trust and Asset Contest in Wisconsin – What Are The Rules?

Updated: Feb 18, 2021

Sometimes we have clients who come to us saying, “We knew there was going to be a problem with mom’s will.” Other times, clients relay to us that they are surprised and upset when unexpected conflict arises when their loved one dies. Conflict can arise between beneficiaries, or between siblings, or between a second wife or husband, and children of a different marriage. All of these things are concerning. However, it can be even more concerning when your parent or loved one passes away, and you find out they changed their will shortly before they died. This might even include changes that result in funds going to unrelated people, such as caregivers. We even had a case where a 40 year old man married an 80 year old woman, without the kids’ knowledge, just to assert his marital interest in her estate after she died. Contesting, challenging or seeking to overturn a will is called a will contest.

The same sort of contest, challenge, or overturning can happen with trusts, life insurance policies, retirement accounts and bank accounts that have beneficiary designations that go against what you believe were your loved one’s intentions. A will contest can also involve vehicles and real estate that are transferred to surviving joint owners or transfer-on-death designees listed on titles and deeds, against what you believe were the loved one’s intentions. These transfers can usually be challenged and upheld on the same grounds as a will contest.

Grounds for a will contest:

There are five legal requirements for a will to be valid in Wisconsin. A will contest or challenge to a bequest usually involves a claim that the deceased:

  1. Was subject to “undue influence” by someone who is now receiving an inheritance that you believe they should not have received

  2. Signed the document without the proper formalities — such as in front of the necessary witnesses or notary.

  3. Did not understand what was going on, lacked capacity to sign the document, or was mistaken or delusional about who the natural objects of their bounty were or should be.

  4. There was fraud in the way that the documents were created, such as forgery or an improper transfer.

These same arguments typically come up in trust contests, or other asset-related contests.

Answers to some common questions:

Please be aware: The answers below apply only to will, trust, or funds-related contests in Wisconsin

Who can contest a will?

In order to pursue any sort of will or trust contest, you must be an “interested party” or have “standing” – which means that you need to have a financial or other interest in the outcome of the will or trust contest. That means that anyone who is an heir according to the Wisconsin statutes, or anyone who is named in any of the decedent’s documents, or anyone who thinks they should have been named, can bring a case contesting a will or a trust or a beneficiary designation.

When can a will be contested?

A will or trust or beneficiary designation contest can be started any time, with limitations based on various circumstances. It is always wise to act very promptly when you think there is something happening that is not right, because once funds are transferred, everything becomes more difficult.

How long do you have to contest a will?

In Wisconsin, a will is admitted into probate after the first hearing, which occurs about two weeks to thirty days after a petition is filed to admit the will, unless a written objection is filed. However, even after the will is admitted to probate, there are things that we can do to challenge it. With a trust, there are no time frames, but we always recommend moving quickly in order to properly defend you.

How much does it cost to contest a will?

We generally charge on an hourly basis for each lawyer and staff member, ranging from $150 to $250 per hour. We are very proud of our record of success, and our clients find that they are extremely grateful and pleased with our attentive and comprehensive approach to these very fact-intensive cases. That’s why we act as a team with you. You always have the ability to decide how far you want to go with a case, and how much you want to spend. We use all sorts of effective litigation strategies, including filing motions, discovery requests, summary judgment proceedings, mediation, negotiation, and trial to work to attain your goals.

Who pays to challenge a will?

In general, Wisconsin follows the America rule that litigants pay their own attorney’s fees. That said, in will contests, we can negotiate for, or the court can order the estate to pay the reasonable attorney’s fees and costs of certain people who either object to or defend a will. These matters are very fact intensive, and must line up with statutory guidelines.

What is the process for contesting a will?

There are several different ways that this can go, depending on if you are contesting a will, a trust, or a distribution from a life insurance policy, 401(k) or IRA. Usually it involves court action, such as filing an objection or a petition. Then, the probate court sets a calendar in a scheduling conference. After that, we discover all of the relevant information, and work towards either resolution of the case, summary judgment, or trial.

What’s the first step?

We would be honored to work with you. Please call us, we will set up a meeting where you can tell us what has happened, and we’ll explain what can be done to address your situation.

The attorneys at Hildebrand Law Firm deal with all types of cases. Following is just a sampling of a few of our cases where we successfully:

  • Stopped the distribution of a $100,000 IRA to a “friend” who already took over $500,000 from an elderly man.

  • Found over $400,000 that a grandson took from his grandmother while she was in full time assisted living after diagnosed with dementia, and negotiated for a return of all funds so that her estate was made whole.

  • Overcame a challenge a will executed about a month before a mother’s death, who was competent and of sound mind. She left the estate to her natural daughter and grandsons, but her boyfriend thought he should have received the estate. Hildebrand Law Firm was successful on summary judgment in this case.

  • Asserted the rights of a beneficiary who was not receiving any documentation or information about the inheritance that he knew he was supposed to be receiving.

  • Defeated a claim that the deceased was incompetent and suffered from an insane delusion when they executed a deed transferring the house to two of his five children, five years before he died and when there was no evidence of any mental incapacity.

  • Protected the assets of a trust from being invaded by the third spouse of the deceased father.

Whether you need help enforcing a will or trust, or trying to challenge a will or trust that was improperly executed or executed under suspicious circumstances, Hildebrand Law Firm LLC stands ready to help.

We know these will contest situations are stressful and disturbing. Often, these issues arise almost immediately after a person dies. We have helped many clients go through these hard times, and we can help you navigate these situations.

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