Detailed Answer
This FAQ explains the typical documents, facts, and steps people include when they file a petition for a one-year (“year’s”) allowance out of a decedent’s estate in Wisconsin probate court. A year’s allowance is a short-term support payment for a surviving spouse (and sometimes minor children) taken from the estate to cover living expenses while the estate is being administered. This article explains what to prepare, how courts usually evaluate the request, and how the petition process generally works in Wisconsin.
Who can request a one-year allowance?
Typically the surviving spouse files the petition. In some cases, a personal representative (executor/administrator) may file the petition on the spouse’s behalf. If minor children need support, a parent or guardian may also request an allowance for them.
Core items to include in the petition
When you prepare a petition for a year’s allowance, include clear, organized information so the court and interested parties can quickly understand the need and decide the request. The petition should generally contain:
- Case and decedent information: Estate name and probate case number (if already opened), decedent’s full name and date of death, and county where probate is pending.
- Petitioner information: Petitioner’s full name, relationship to decedent (e.g., surviving spouse), current address, and contact information. If a representative files, identify their authority (letters testamentary or administration).
- Legal basis and request: A plain statement that you are requesting a one-year allowance and the statutory or common-law basis for the request (identify that it’s a family/year’s allowance request under Wisconsin probate practice).
- Amount requested and period: The total dollar amount requested for the one-year period and the proposed start and end dates (often starting at or near the date of filing or date of death).
- Detailed budget and justification: A month-by-month or yearly budget showing the petitioner’s ordinary living expenses (housing, utilities, food, medical, transportation, insurance, dependent care, etc.). Explain any extraordinary expenses (ongoing medical care or major bills).
- Estate assets and liquidity statement: A simple summary of known estate assets (bank accounts, real estate, investments, vehicles, life insurance payable to the estate, etc.) and whether sufficient liquid funds exist to pay an allowance without disrupting administration. If assets are tied up (e.g., real estate sale required), explain timing.
- Income and resources of petitioner: Petitioner’s current income sources (wages, Social Security, pension, benefits), other resources (savings, other property), and any income available from decedent (survivor benefits, joint accounts). Show why those are insufficient to meet immediate needs.
- Supporting documents (attach as exhibits): Death certificate; marriage certificate (to prove spousal status); recent pay stubs, Social Security or pension statements; bank statements; mortgage or rent statements; utility bills; medical bills; summary of estate inventory if available; letters of administration/testamentary if already issued; and any prior agreements (e.g., prenuptial agreement) that may affect entitlement.
- Notice and service information: A declaration that all interested parties (named beneficiaries, heirs, and the personal representative) have been or will be notified of the petition, and a proposed plan for service. Include a proposed form of notice if the court requires it.
- Proposed order: A drafted order the judge can sign granting (or denying) the allowance, specifying amount, timing, and how payments should be made (lump sum or periodic payments). Include language assigning administrative responsibility (e.g., payable by the personal representative from estate funds).
- Certificate of service and filing fee information: Proof that you will serve the petition on interested parties and the probate court (and the filing fee or fee waiver request if applicable).
How courts review the petition
Courts typically evaluate whether the allowance is reasonable based on the surviving spouse’s needs, available estate resources, and fairness to creditors and beneficiaries. Common court considerations include:
- Whether the petitioner is legally entitled to an allowance as a spouse or dependent.
- The petitioner’s demonstrated needs compared to their own income and assets.
- Whether paying the allowance will prejudice creditors or unduly reduce property that must pass under the will or statute.
- Whether alternatives exist (temporary loans, life insurance payable outside the estate, or other income sources).
Practical filing steps and timeline
- Gather documents and prepare the petition with a clear budget and exhibits.
- File the petition with the probate court where the decedent’s estate is opened (or where administration will be sought). Pay the filing fee or request a fee waiver if eligible.
- Serve notice on the personal representative, named beneficiaries, heirs-at-law, and any creditors per court rules.
- Attend the hearing (if the court schedules one). Be prepared to explain the budget and answer questions about estate liquidity and competing claims.
- If the court grants the allowance, follow the court’s order: the personal representative must pay from estate funds as ordered and record payments in the estate accounting.
What if the petition is contested?
If a beneficiary, heir, or creditor contests the allowance, the court will hold a contested hearing. Common contest grounds include: the amount is excessive, estate funds are too limited, or the petitioner has adequate resources elsewhere. Contested hearings can require more evidence (affidavits, testimony, financial records) and may take longer to resolve.
Effect on estate distributions and creditors
A one-year allowance is typically treated as a priority charge against the estate for the short period awarded. That can reduce the amount otherwise available to beneficiaries, and it may affect distributions after creditors are paid. The personal representative must account for allowance payments in estate accounting.
Disclaimer: This is general information, not legal advice. Laws and court practices vary. For advice specific to your situation and to confirm current Wisconsin procedures and deadlines, consult a probate attorney in your county or contact the probate clerk’s office.
Helpful Hints
- Start early: assemble financial records before filing so the petition is complete and convincing.
- Be specific: provide a clear monthly budget and attach supporting bills and statements.
- Show effort to minimize impact: explain if you’ve applied for benefits (Social Security survivor benefits) or other help.
- Provide a proposed order: courts appreciate a ready-to-sign order that clearly states amount, timing, and who pays.
- Notify all parties: follow local probate rules for service to avoid delays from defective notice.
- Check local court rules: counties may have specific forms or procedures for allowance petitions.
- Keep estate liquidity in mind: if funds are not liquid (real estate), explain the plan to obtain cash (sale, loan, or temporary advance).
- Consider an attorney if contested: if beneficiaries or creditors are likely to object, consult counsel to prepare evidence and strategy.
- Record payments: if the allowance is granted, ensure the personal representative records payments in the estate accounting to preserve transparency.