Guardian of Estates and Trustee of Trusts
While the office is to assist attorneys and the public with probate procedures, we cannot provide legal advice. Applicable procedure depends upon size of estate. Audit and approve/disapprove all estate and trust inventories and accountings, both annual and final. Review all documents prior to filing, rejecting any which are improper. Collect the appropriate filing fees and appoint a guardian ad litem when required.
Marathon County has outlined several policies for completing annual accountings. Annual Accountings are generally mailed to the guardian/trustee in December. It is the guardian/trustee’s responsibility to complete and file the annual accountings by April 15 of each year.
Marathon and Lincoln Counties have set-up standard guidelines for completing the inventory and annual accounting documents.
You may deposit your Last Will and Testament for safekeeping with the Register in Probate for a Statutory Fee of $10. Any will deposited in this manner will remain on file until withdrawn for purposes of probate or 100 years. Any will in safekeeping status is not a public record.
If a decedent leaves a Last Will and Testament but there is not a need to commence an action, their Last Will and Testament must still be filed with the Register in Probate pursuant to sec. 856.05 of Wisconsin Statutes. A Non-Probate of Filed Will form can be found in the forms and documents section.
To better help you understand the terminology; you can go into the definition section of this web page.
A guardian is one who has the care of the person or property of another. Persons who may be eligible for guardianship are developmentally disabled, incompetent, a minor, or a spendthrift. A guardian is appointed by the court to take care of the “person” and/or the “estate” of a ward.
The guardian of the person makes decisions relating to the physical placement of the ward, the medical treatment and control over the daily life of the ward.
The guardian of the estate takes possession of the ward’s property, provides an inventory to the court of that property, and provides yearly annual accounts to the court of how the ward’s assets have been maintained and spent. The guardian of the estate must protect and preserve the property of the ward while taking into account the best interests and needs of the ward.
Sometimes a ward must be “protectively placed” as they may be a danger to themselves or others. A protective placement is a placement of a ward for the primary purpose of providing care and custody. No guardian may make a permanent protective placement of his or her ward with a court order.
If a ward is protectively placed, the Court must review that placement every year. A social worker sends reports to the court, who then appoints a guardian ad litem to meet with the ward. After the court receives a written recommendation from the guardian ad litem, a hearing is held to see if the present placement should continue, or if a more (or less) restrictive placement should be implemented. This process is called a WATTS Review, and is mandated by the Wisconsin Legislature.
The following agency in Marathon County may assist in deciding if a guardianship pertains to your situation:
North Central Health Care Facilities
Human Services Board
1100 Lake View Drive
Wausau WI 54403
There is a filing fee for guardianships. If the ward has assets of $50,000 or less, the fee is $20.00 If a ward has over $50,000 in assets, the fee is .2% of the gross estate.
Another resource for guardians is the Wisconsin Guardianship Support Center. The toll-free helpline number is (855) 409-9410 or you may send them an E-Mail or visit their website at gwaar.org/gsc for more information.
Upon notification of a detention, the probate office will open and maintain the court file. Notification can come from law enforcement, corporation counsel or the health care center. We will also appoint an attorney if the person does not qualify for a State Public Defender. The Marathon County Corporation Counsel’s office is the prosecuting office on this type of case. Once the commitment case is closed, it is retained for seven years in the probate office.
Adults and children may be adopted. The probate office will assist the public with filing adoptions and step-parent adoptions without assistance of counsel. Our assistance is limited to procedure. Remember we cannot give legal advice. Forms are available on www.wicourts.gov website. We maintain all permanent adoption and adoptive placement files, including voluntary terminations of parental rights accompanying a step-parent adoption. This will focus on a child adoption. You may find additional information in Section 48.81 – 48.978 of the Wisconsin Statutes.
The court of the county where the proposed adoptive parent or child resides, upon the filing of a petition for adoption or for the adoptive placement of a child, has jurisdiction over the child until the petition is withdrawn, denied or granted. Venue shall be in the county where the proposed adoptive parent or child resides at the time the petition is filed. The Court may transfer the case to a court in the county in which the proposed adoptive parents reside.
Upon the filing of the Petition for Adoption, the Court shall schedule a date and time for hearing within 30 days of the filing. Notice of the hearing shall be mailed to the guardian of the child, if any, and to the agency making the investigation. The child must live in the adoptive person’s residence for at least six (6) months prior to the adoption.
The following documents must be filed prior to an adoption being completed:
- Petition for Adoption Form JC-1645 Appendix A
- Affidavit of Mailing Form PR – 1817
- Order for Hearing and Investigation – Adoption Placement/Adoption Form JC-1641
- Consent to Adoption Form JC-1646
- Order for Adoption Form JC-1647
- Certified copy of the Termination of Parental Rights
- Certified copy of the Birth Certificate
Once you have the documents completed, bring the originals and a copy of the forms to the Probate Office for filing. It is the petitioner’s responsibility to provide all interested persons with a copy of the filed documents. The petitioner will also need to provide the Agency with a copy of the Order for Hearing so that they can set up a time to conduct the investigation/screening before the scheduled court date.
Termination of Parental Rights
Although attorneys often complete a Termination of Parental Rights, law does allow for individuals to complete it by themselves.
By Law this Office may not Give Legal Advice or Fill in Forms
The child needs an Attorney to Act as Guardian ad Litem. This attorney will be appointed by the Court.
The forms that you will need are listed below. You may not need all of the forms that are listed.
- JC – 1630 Petition for Termination of Parental Rights
- JC – 1633 Summons (Termination of Parental Rights)
- GF – 150 Uniform Child Custody Jurisdiction Act Affidavit
- JC – 1634 Consent to Use Mother’s Name for Publication
- Authorization by mother to use her name in the notice when publication is required for a termination of parental rights petition.
- JC – 1635 Notice and Order of Hearing (for publication)
- To give notice to parents who cannot otherwise be Served that a petition to terminate parental rights has been filed and to summons the parents to court for a hearing.
- JC – 1636 Consent to Termination of Parental Rights (Affidavit)
- Completed by the parent consenting to termination of his or her parental rights to a child.
- JC – 1637 Consent to Termination of Parental Rights (Judicial)
- Consent form signed by a parent before a judicial officer, consenting to the termination of his/her parental rights.
- JC – 1638 Order Concerning Termination of Parental Rights (Voluntary)
- JC – 1639 Order Concerning Termination of Parental Rights (Involuntary)
- GF – 131A & B Order Appointing Guardian ad Litem
- CFS – 149A Family History Questionnaire – Medical/Genetic
- Pregnancy & Delivery (Mother to complete – 4 pages)
- Advisement of Rights
- CFS - 149 Family History Questionnaire – Medical/Genetic
- (Completed by Mother – 7 pages)
- CFS - 149 Family History Questionnaire – Medical/Genetic
- (Completed by Father – 7 pages)
- CFS - 19 Court Inquiry on Declaration of Paternal Interest
- CFS - 142 Affidavit
- CFS – 134 Court Report for Centralized Birth Record
- Certified Copy of Birth Certificate
Once you have the forms completed, please file them with the Register in Probate’s Office. A Judge will then be assigned and hearing scheduled within 30 days. You will be responsible for providing all interested persons, including the Guardian ad Litem, with a copy of the filed documents. If you need to publish, you will also be responsible for making sure that the Notice and Order for Hearing (for Publication) gets published in the newspaper of the last known residence if you are unable to locate the other parent. You will also need to provide us with the Affidavit of Publication showing that it was published. You should receive this from the newspaper.
Filing Documents in the Probate Office
When all the papers are completed, please return the following to the Probate office:
- Original set of documents
- At lease two extra copies of the documents
- One you will keep for your records
- One you will furnish to the Guardian ad Litem once appointed
- $250 check made payable to the Probate office for the guardian ad litem deposit. (If the GAL billings is more than $250, the person petitioning the court will be responsible for any additional money due.)
To be filed After Action Commenced:
- PR – 1817 Affidavit of Mailing – showing the Summons was mailed to all interested parties and the Advisement of Rights
The word “probate” describes the process of transferring certain property from a decedent to the heirs. In the definition section, you will find definitions to help you understand the terminology in probate.
Is Probate Required? Probate is not required in all deaths. The following questions should be asked to determine whether or not probate is necessary:
Is there a will? If there is a will, even if probate is not required, it must be filed with the Register in Probate within 30 days of the decedent’s death.
What assets does the decedent have? (real estate, stocks, bonds, bank accounts, vehicles, etc.)
How are the assets titled? (joint tenancy, solely owned, marital, payable on death, etc.)
What debts does the decedent have? (mortgage, credit cards, electric bill, etc.)
Who are the legal heirs and beneficiaries of the decedent?
Once the above questions are answered, they are used in determining the type of probate procedure that may be used. There are a number of probate procedures, including:
Transfer by Affidavit ($50,000 and Under). Transfer by Affidavit is used for solely owned property within this state valued under $50,000. Any heir may collect and transfer the solely owned assets by completing an affidavit in duplicate. The original form must be sent via certified mail to the Wisconsin Department of Health and Family Services. The signed return receipt, along with the duplicate form, must be presented to holder of the asset(s) 20 days after the Wisconsin Department of Health and Family Services has signed the return receipt. This document is not filed in the probate office.
Summary Settlement and Summary Assignment. The Summary Settlement is used when the decedent is survived by a spouse and/or minor child(ren). The Summary Assignment is used if there is no spouse or minor child(ren). The value of the estate cannot exceed $50,000 after the expenses are paid. Summary Settlement does not require publication, but Summary Assignment does.
Termination of Joint Tenancy. This is a form of probate whereby the surviving joint tenant must free the joint property from any tax claims and has to get the property into his/her own name. This can be done in two ways. The first way is handled by attorneys and approved by the Court. The second way is by contacting the Register of Deeds office for a form entitled “Termination of Decedent’s Property Interest” (HT-110).
Formal Probate. This may be used if the decedent has $50,000 or more of assets. All hearings are held in front of the circuit court judge. An inventory must be filed, a notice is published in the newspaper, and the court insures that the matter is completed in a timely and proper manner.
Informal Probate. Informal probate may be used if there are $50,000 or more of assets, and the will does not prohibit its use. All parties must agree to use this procedure, and any party at any time may petition the court for Formal Administration. The personal representative is responsible for making sure all aspects of the administration are completed in a timely and proper manner.
What you should know about being a personal representative?
A statement in a will about who should serve as personal representative does not automatically allow you to start performing the duties of a personal representative; the statement in the will is merely a nomination by the decedent. The court must appoint you before you assume the duties of a personal representative. The document that shows others you are appointed is Domiciliary Letters.
Serving as personal representative is a very important job. You may be required to post a bond to protect the assets in the estate if you do not do your job appropriately. You must keep all interested parties informed of the status of the estate proceedings and complete the estate in a timely fashion.
The personal representative is acting in place of the decedent. You are expected to handle the assets of the decedent just as any prudent person would handle their own assets.
Your duties will include taking possession of all the decedent’s assets and filing an inventory including the date of death values of all assets you have in your control (the inventory must be filed within 6 months of the filing of the Petition for Administration). You will be starting a checking account where you can keep accurate records of income and expenses. You will give notice to creditors and may give notice to interested persons by publication in the newspaper. (The Wausau Daily Herald is the official Marathon County newspaper.)
You may be liquefying assets, selling real estate, running a business, insuring and keeping property in good repair. You will collect any income due to the decedent like interest, dividends, rent, etc. You will pay bills, settle proper claims or object to claims that are not appropriate.
There may be final and fiduciary tax returns to complete. You may be required to file a closing certificate for fiduciaries from the Department of Revenue. You are encouraged to utilize the services of a competent tax preparer or an attorney to help you with this aspect of the estate.
You will distribute assets according to the will and/or statues and secure receipts from those receiving assets.
There are several important timelines to remember, they are:
- A creditor has 3 months from the date the Notice of Creditors is signed to file a claim against the estate.
- The inventory must be filed within 6 months of the filing of the Petition for Administration.
- An estate must be closed within 12 months of the filing of the Petition for Administration, unless the personal representative petitions the court for additional time in which to close the estate.
The Register in Probate or staff will do the following in an informal probate proceeding:
- Provide the probate forms for a fee.
- Check papers filed for completeness.
- Appoint the personal representative
- Admit or deny the will to probate
- Set bond for the personal representative, if required
- Issue Domiciliary Letters
All forms are found on the internet, site: www.wicourts.gov
The Register in Probate or state can not do the following:
- Give legal advice
- Complete forms for you
- Gather information about the estate or its assets
- Give you tax information or advice