How to Give Notice for a Formal Probate?

The meaning of notice will vary among the several categories in which notice is served, or whether the notice is a statement surrounding the category in which the notice is an actionable statement made

Petition for Administration

When the petition for administration is filed, the court must set a predetermined time for proving the will, if there is any need for such action. The court must set a time to determine the rightful and lawful heir(s), and set a time for the appointment of a personal representative to the matter.

Notice of Hearing

The notice of the hearing in regards to the petition must be presented to any and all interested persons, as well as the guardian ad litem, if they are represented by one. With the exception of persons whose sole concern is as beneficiary of monetary bequest or specific property, a copy of the will must be sent to all persons involved. To the individuals whose interest is as beneficiary of monetary bequest or specific property, a notice of the nature, as well as the amount of devise or bequest must be presented.

Interested persons consist of; the beneficiary or heir of the decedent, the beneficiary of the will including the trustee, the individual presented as personal representative, the beneficiary of trust created under the will, the attorney specified, a beneficiary under prior will or beneficiary that has been excluded from the will by codicil, court ordered individuals, and finally under certain circumstances, included are the adopted children of decedent, if applicable.

How the Notice Is Given

Unless a specific statute states otherwise, a notice is always required by law (ex. for a divorce) under § 879.05. It must be issued via First Class Mail within Wisconsin, or outside of Wisconsin a minimum of 20 days before the hearing is to commence to any individual whose address is either known, or may be reasonably obtained. An affidavit[1] is required which proves proof of service. It must show who mailed the notice, when the notice was mailed, the address to where the notice was sent, and to whom the notice was sent.

Remember, the first notice sent by mail must also be accompanied by a class 3 notice by publication in a newspaper that is published in the county. In addition, if the names or addresses of one or more parties to the case cannot be obtained, all subsequent hearings must be preceded by notice by mail and notice by publication. It can also be issued by personal service a minimum of 10 days before the hearing, except as provided for service by publication. That alternative service may not be issued outside of Wisconsin. If this is the case, proof of personal service must be provided.

Please note, each interested party is entitled to notice, as is any guardian ad litem, guardian of the estate, attorney, or attorney general when charitable trust or escheat are involved under sections § 701.0103(4), and § 852.01(3), respectively. In cases where a petition shows, or appears to show, that the individual is living in a foreign country and their address is unknown, the court must cause notice of the hearing petition or other proceeding to be given to the consul, vice consul, or consular agent of the foreign country by mail. It must be sent to the post-office address a minimum of 20 days before the hearing. Although, if none are available to be reached, the court may mail the notice to the attorney general.

In addition, if the order does not state the persons specifically in regards to whom the notice is given, or the order is deemed to refer to the persons in the petition, or are shown on record to be the interested person(s), notices will be sent to the post-office addresses on record. If the post-office address of the interested person is unknown, or if the names of the interested persons are unknown, the notice must state this and be accompanied by a statement in a publication of a notice.

Delayed Service of Notice

If for any reason whatsoever, notice to any interested parties is insufficient, the court might order service of notice in conjunction with certain documentation, appoint a guardian ad litem when required, or the court may order the individual or the guardian ad litem to show cause as to why that individual should not be subject to court action due to the fact notice has been rendered. In such cases, the individual can consent in writing to have been bound by preceding actions.
Waiver of notice. Individuals who are not minors or deemed to be incompetent, except by virtual representation, may waive service of notice in writing. So may the appointed guardian ad litem and guardians of an estate, when acting on behalf of themselves or those they represent. A waiver of notice qualifies as the same as timely service of notice.

Effect of failure[2] to give notice. The failure to provide notice to an interested party leaves all judgments and/or order not binding, due to the fact that the court does not have jurisdiction over the individual(s) because they did not receive notice.


References: [1]What is an Affidavit?, [2]Not Accepting a Divorce Notice


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