Finalizing Probate When a Will Is Outdated and Getting Authority to Sell Real Property

Disclaimer: This article is educational only and is not legal advice. Rules vary by county and case specifics. Consult a Wisconsin probate attorney for personalized guidance.

Detailed answer — overview and step-by-step process under Wisconsin law

When a decedent’s will is “outdated” (for example, it was written long before the decedent acquired current assets, or circumstances changed), that alone does not automatically void the will. Under Wisconsin practice, you must start by determining whether the written will is legally valid and whether it has been revoked by a later will or codicil. Then you must open a probate estate (or seek another appropriate procedure) so a personal representative can obtain authority to manage and, if necessary, sell estate real property.

1. Determine the will’s validity and current effect

• Confirm you have the testator’s last valid will. A later will or codicil that meets statutory formalities can revoke an earlier will. Physical destruction of the will with intent to revoke also revokes it.
• If the will’s dispositions reference property the decedent no longer owned or beneficiaries who predeceased the testator, the will’s provisions may lapse or be subject to anti‑lapse rules. These facts affect distribution but do not necessarily prevent probate.
• If you are unsure whether the will is the last valid will, the safe step is to file it with the probate court so the court can determine its status.

2. File probate in the county where the decedent was domiciled

To give anyone legal authority to act for the estate (including selling real property), the probate court issues formal credentials. In Wisconsin you typically file a petition with the county circuit court to probate the will and appoint the personal representative named in the will (the executor). If there is no valid will, the court will appoint an administrator for an intestate estate.

Start at the Wisconsin Courts probate self‑help pages for steps, local forms, and filing information: Wisconsin Courts — Estate & Probate Self‑Help.

3. Personal representative credentials: Letters Testamentary or Letters of Administration

After the court admits the will and appoints the representative, it issues written authority (often called letters testamentary or letters of administration). These formally empower the representative to collect assets, pay debts, manage estate property, and—subject to court orders or applicable rules—sell estate property.

Most title companies, buyers, and lenders will require certified letters or a court order showing the representative’s authority before closing a sale.

4. Types of administration and how they affect selling property

• Unsupervised vs. supervised administration: Wisconsin allows unsupervised administration in many cases, which means the representative can administer the estate without ongoing court supervision. However, unsupervised status does not remove the need for initial appointment and letters. Some transactions—especially sale of real estate—may still require a court order if beneficiaries object or title companies insist.
• Jointly owned property, property in trust, or property with named beneficiaries (payable‑on‑death, transfer‑on‑death) often passes outside probate. If the property wasn’t owned by the decedent alone, the representative may not have authority to sell it through probate.

5. Obtaining authority to sell real estate

Steps to get clear authority to sell:

1. Obtain certified Letters Testamentary or Letters of Administration from the probate court.
2. Provide a copy of the letters and the death certificate to the title company or buyer. Title companies often also run a local title search and will point out any liens or issues that must be cleared.
3. If the will or beneficiaries create doubt or objections, or if a lender demands extra assurance, petition the court for an order authorizing the sale of real property. A court sale order removes buyer and lender concern about challenge after closing.
4. Prepare and sign the deed as personal representative at closing. The deed is typically executed in the representative’s capacity (e.g., “John Doe, as Personal Representative of the Estate of Jane Doe, deceased”).
5. Pay valid liens, mortgages, and taxes from sale proceeds, then distribute the remainder according to the will or Wisconsin intestacy law if no valid will applies.

6. Creditor claims, notices, and accounting

Before final distribution, the estate must address creditor claims. Wisconsin procedures require notice to creditors and time for them to present claims. Also provide notice to heirs and beneficiaries. If you sell property before resolving claims, you may need to hold proceeds in the estate until claims are resolved.

7. Closing the estate and final distribution

Prepare a final accounting and petition for discharge of the personal representative when administration is complete. The court will approve distributions and discharge the representative from future liability.

Common scenarios and how they change the process

• If the will is outdated but still valid: Probate proceeds under the will; assets pass according to its terms. You may need to reconcile references to assets no longer owned.
• If the will is invalid or revoked: Estate is intestate; distributions follow Wisconsin intestacy rules and the court appoints an administrator.
• If the property is jointly held with right of survivorship: The property often passes automatically to the surviving joint owner and is not part of probate.
• If the decedent created a trust that owns the property: The trustee will handle the sale per trust terms; probate may not be required for that asset.

Key Wisconsin resources

• General Wisconsin statutes and searchable code: Wisconsin Legislature — Statutes
• Wisconsin Courts probate and estate self‑help: https://www.wicourts.gov/services/public/selfhelp/estate/index.htm
• Local circuit court forms and filing information: Wisconsin Circuit Court Forms
• Apply for an EIN for the estate if needed (IRS): IRS — Apply for an EIN

Practical checklist before attempting to sell estate real property

• Locate the original will and file it with the probate court.
• Get a certified copy of the death certificate (several copies).
• File the petition for probate and obtain Letters Testamentary or Letters of Administration.
• Have a title company perform a title search to identify liens, mortgages, or other encumbrances.
• Confirm ownership type (sole, joint with right of survivorship, trust ownership, or beneficiary transfer).
• If necessary, ask the court for a specific order authorizing sale to satisfy buyer/lender requirements or to resolve beneficiary disputes.
• Collect estate tax, accounting, and creditor‑notice information; retain proceeds as required until claims are resolved.
• Execute deed at closing in representative capacity and record it with the county register of deeds.

When to consult an attorney

Talk to a Wisconsin probate attorney if any of the following apply:

• The will’s validity is in doubt or there may be a later will/codicil.
• Beneficiaries object to a sale or distributions.
• Title companies or lenders require a court order.
• Complex assets (commercial property, unresolved mortgages, environmental concerns, or significant creditor claims).
• You prefer the court to supervise the sale to minimize future disputes.

Helpful Hints

• Do not attempt to sell property on behalf of the decedent until you have court‑issued letters or a clear legal basis (e.g., surviving joint owner or trustee authority).
• Keep meticulous records: inventories, receipts, notices, and communications with beneficiaries and creditors.
• If beneficiaries agree in writing, some courts and buyers accept that as strong evidence — but many title companies still require letters or a court order.
• Talk to the county register of deeds early to understand local recording requirements for a representative’s deed.
• Small estates procedures may exist for low‑value estates; check the Wisconsin Courts site or consult counsel to see if a simplified path is available.
• When in doubt, seek a court order authorizing the sale. The cost and delay are often less than the risk of having a sale later attacked and reversed.

If you want tailored next steps, provide details such as whether the property is titled solely in the decedent’s name, whether you have a copy of the will, and whether beneficiaries agree to a sale. An attorney can review the will, papers, and titles and suggest the quickest secure path to sale.