Navigating the details surrounding formal probate procedure may be somewhat complex, or if anything, widely detailed. In this article, we will address the process surrounding jurisdiction in detail.

First, jurisdiction must be established. Jurisdiction is generally established by way of a verified petition.  Jurisdiction of proceeding for an administration of a decedent’s (person who has died) estate is established if a decedent was a resident in Wisconsin, in a county where the decedent lived at the time of their death. In situations like this, it is fairly easy to distinguish jurisdiction. There are cases, although, where an individual owned property in a state where they did not live. This is where the decision of jurisdiction becomes a little more complex.

If the decedent was not a resident, and did not live in any county in Wisconsin where the deceased owned the property, the first court that exercises jurisdiction under statute 856.01(2) will have exclusive jurisdiction. Further, if the decedent did not maintain residence in Wisconsin, it would be at the trials court’s discretion whether or not to exercise its right to refuse or grant original probate.

Many wonder who has the right to petition for administration. Generally, any personal representative that was named in the will, or a validated interested person under § 851.21 may petition. A valid individual is one who would inherently maintain a vested right for petition. This validation also carries a wide range of definition, but centers around a verifiable right to petition to begin with.

Some may even wonder whether or not an attorney may petition. An attorney may not petition unless the attorney is an interested party. However, if no petition is filed within 30 days by an interested and valid party, a petition for administration can be made by any individual who was the legal guardian at the time of death, creditors, any individuals who has a valid cause of action or right of appeal that could not otherwise be established without the appointment of the personal representative.

Finally, any individual that holds an interest in the property that is or may be a part of the decedent’s estate may also petition after 30 days. The law also states that the burden of moving the action forward falls on the petitioner. According to statute 805.03, failing to comply may result in the dismissal of the petition. Of course this is subject to the petitioner’s rights of due process.

Trisha Festerling, J.D.

Family Law Attorney

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