Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney in Wisconsin for guidance on your specific situation.
Detailed Answer: Verifying and Probating an Old Will in Wisconsin
Discovering a decedent’s will decades after execution raises two primary questions under Wisconsin law: (1) how to verify the document’s validity and (2) how to obtain probate despite the age of the will. Below is a step-by-step overview.
1. Confirm Formal Execution
Under Wis. Stat. § 853.02, a will is valid only if it is in writing, signed by the testator (the person who made the will), and witnessed by at least two competent individuals who sign in the testator’s presence. Review the will for:
- Testator’s handwritten or witnessed signature.
- Signatures of two adult witnesses attesting that they saw the testator sign the will.
- No glaring irregularities (erased text, missing pages, or obvious forgeries).
If the original will lacks these elements, Wisconsin courts may require additional proof.
2. Prove a Lost or Aged Will
If the original will is damaged, lost, or simply aged, you may still probate it. Wisconsin’s probate code allows courts to admit a will even if the original cannot be produced:
- Wis. Stat. § 867.07 – Lost, destroyed, or stolen wills: permits presentation of a certified copy, photo, or typewritten draft, subject to verification of authenticity. (§ 867.07)
- Wis. Stat. § 867.08 – Proof of lost or destroyed will: requires clear and convincing evidence that the copy accurately reflects the decedent’s intentions and that no subsequent will exists. (§ 867.08)
Gather supporting evidence:
- Affidavits from the original witnesses describing execution and contents.
- Handwritten notes, correspondence, or drafts matching the will’s text.
- Testimony from family members or advisors who discussed the will with the decedent.
3. File a Petition with the Probate Court
Once you assemble proof, you must petition the circuit court in the county where the decedent resided. Key steps include:
- Complete the probate petition form listing the will, heirs, assets, and your interest. Wisconsin’s probate code spans chapters 861–879. (Chapter 861)
- Attach:
- The original will or a certified copy.
- Death certificate for the decedent.
- Affidavits and other proof of authenticity.
- Pay the filing fee and serve notice to interested parties (spouse, heirs at law, beneficiaries named in the will). Wisconsin courts enforce notice requirements under Wis. Stat. § 859.02.
- Attend the probate hearing. The court will weigh the strength of your evidence and may ask witnesses to testify. If the judge finds the will valid, the court will issue letters testamentary (or letters of administration with the will annexed).
There is no fixed statute of limitations for probating an old will in Wisconsin, but courts expect petitioners to act diligently once they discover the document. Delay can affect witness availability and evidence reliability.
Helpful Hints
- Start gathering proof immediately after finding the will to preserve witness memories and documents.
- Check county courthouse records to see if someone already filed an earlier probate petition.
- Ask for certified copies of relevant records (e.g., death certificate, property deeds) to attach to your petition.
- Consider hiring a probate attorney skilled in contested will proceedings to guide you through complex evidentiary issues.
- Keep detailed notes of all communications and steps you take—courts appreciate organized records.
By following these steps and meeting Wisconsin’s formal and evidentiary standards, you can improve your chances of successfully probating an old will, even decades after its execution.