Waukesha County Circuit Court Rules
(Third Judicial District)
Probate Court Division
Adopted: February 21, 2000
Effective: February 21, 2000
- Rule 1: Subject Matter of the Court
- Rule 2: Document Preparation & Filing of Documents
- Rule 3: Adjournment of Hearings
- Rule 4: Trial Procedure
- Rule 5: Television/VCR Equipment Policy
- Rule 6: Guardian ad Litem & Advocate Counsel
- Rule 7: Estate Matters
- Rule 8: Trust Matters
- Rule 9: Guardianship, Conservatorship & Protective Placement Matters
- Rule 10: Civil Commitment Matters
- Rule 11: Miscellaneous Court Rules
Probate Court Division
Rule 1: Subject Matter of the Court
1.1 Jurisdiction of the Probate Court
(a) Probate actions under Wis. Stat. Chapters 851 through 879
(b) Guardianship and protective placement actions under Chapters 880 and 55, except guardianship of the person of a minor (handled by Juvenile Court);
(c) Trust actions under Chapter 701;
(d) Involuntary mental, drug and alcohol commitments (civil commitments) under Chapter 51;
(e) Adult adoptions under Chapter 881: and
(f) Elder Abuse Restraining Orders under Chapter 813.123.
1.2 Responsibility within the Probate Court
(a) Nothing contained in these rules will be construed to limit or restrict the assigned judge in exercise of his or her discretion nor restrict the Chief Judge in the exercise of his or her duties.
(b) Responsibility of the Civil Commitment Judge
- The Civil Commitment Judge handles all recommitment and final hearings for civil commitment cases. The Civil Commitment Judge also makes determinations on issues raised with the court, not requiring a hearing, relating to these matters. The Civil Commitment Judge may assign to a Court Commissioner or the Register in Probate any other matters over which the Judge has jurisdiction, as allowed by Wisconsin Statutes.
(c) Responsibility of Court Commissioners
- The Probate Court Commissioner handles uncontested hearings dealing
with formal probate, trust, protective placement, adult adoption, adult
guardianship, guardianship of the estate of a minor, and elder abuse
restraining orders.
- The Court Commissioners handle civil commitment probable cause hearings and emergency protective placement hearings.
(d) Responsibility of the Register in Probate/Probate Registrar
- The Register in Probate office is responsible for the opening,
reviewing, filing, maintenance and closing of all files and papers
dealing with civil commitment, probate, trust, protective placement,
adult adoption, adult guardianship, guardianship of the estate of a
minor and elder abuse restraining orders, as well as administrative
matters dealing with probate court.
- The Probate Registrar handles uncontested informal probate hearings.
(e) Responsibility of the Probate Judge
- All other matters falling under the jurisdiction of the probate court are handled by the Probate Judge.
Rule 2: Document Preparation and Filing of Documents
2.1 Document Preparation
(a) All papers submitted will be typed or legibly handwritten.
(b) All papers will be filed on 8 1/2" by 11" paper with the exception of wills, deeds, certified death certificates or exhibits. All papers will have printing on only one side with the exception of two-sided model court forms.
(c) All papers commencing an action will include the name, address, and telephone number of the person commencing the action. If an attorney is involved in the proceeding, the papers will also contain this information for the attorney, along with the attorney's state bar number.
(d) Where an order is filed with the court, it must be presented as a separate document from any other documents pertaining to the issue.
2.2 Filing of Documents
(a) All papers relating to Probate Court subject matter are to be filed at the Register in Probate office of the Courthouse, not with any specific judge, court commissioner, or court personnel, unless filed with the court at the time of the hearing.
(b) Documents are accepted for filing during normal posted business hours, excluding holidays as observed by Waukesha County. Documents received after hours will be filed the next business day of the office.
(c) All papers relating to a scheduled hearing are to be filed with the Register in Probate office at least twenty-four (24) hours prior to the hearing for consideration at that hearing or be filed with the court at the time of the hearing.
(d) All orders, certificates, and judgments, other than final judgments, are to be submitted to the court for signature within 15 days following the conclusion of the hearing.
(e) All statutory filing fees and local forms fees must be paid in full prior to the acceptance of any paper by the court. Information on the current fees is available from the Register in Probate office.
(f) As required by Wisconsin Statutes, the party submitting a paper to the court for filing is responsible for serving a copy of the paper upon all interested parties to the matter and their attorneys of record.
2.3 Facsimile Transmission of Documents to the Court
(a) Facsimile documents transmitted directly to the court will be accepted for filing if:
- The Register in Probate office has a facsimile machine capable of
reproducing documents that meet the Supreme Court Rule concerning
retention of filed documents. Only plain paper facsimile machines
currently comply with this requirement.
- The Register in Probate office has a facsimile machine physically
located within its offices.
- The document does not exceed six (6) pages in length, excluding
cover sheet. Further, a cost of $3.00 per page above the limit will be
assessed unless prior waiver of the limit is obtained from the court.
(Based on the local rule, facsimiles exceeding six (6) pages per
document, excluding the cover sheet, will not be accepted for
filing.)
- No filing fee is required.
- No additional fee or charge can be assessed to the Register in Probate office for accepting or receiving the facsimile document.
(b) Facsimile documents transmitted to a non-court agency, party or company for reception and ultimate transmittal to the court will be accepted for filing only if:
- No filing fee is required, and
- No additional fee or charge can be assessed to the Register in Probate office for accepting or receiving the facsimile document.
(c) The party transmitting the facsimile document is solely responsible for ensuring its timely and complete receipt.
(d) The Register in Probate office is not responsible for:
- Errors or failures in transmission that result in missing or
illegible documents.
- Periods when the Register in Probate office facsimile machine is not operational for any reason.
(e) The Judge or Court Commissioner may authorize in advance the filing of a particular document that does not conform to these rules if good cause is shown and they are in conformance with State Statutes.
(f) Documents that are not to be filed but are to be used by the court for reference or other purpose may be transmitted by facsimile transmission at the discretion of the Judge, Court Commissioner or Register in Probate.
(g) Copies of documents from court files will not be transmitted by facsimile machine without the appropriate costs being received in advance. The facsimile machine is not to be utilized in an effort to avoid payment of statutory photocopy costs.
(h) If correspondence or a document is transmitted by facsimile machine, original documents are not to be mailed to the Register in Probate office for filing. Original documents are to be maintained by the signing party or his or her attorney. A cost assessment for pages filed in violation of this rule will be $3.00 per page. Originals filed will be returned.
(i) The requirement of a handwritten signature subscribing papers filed in court may be satisfied by a duplicate, as defined in Wisconsin Statutes, if a handwritten signature appears on the original document and the signing party or his or her attorney retains the original document.
(j) Any requests for confidential transmission will be submitted to the Register in Probate for prior review and approval.
(k) The Register in Probate office's facsimile machine will be operational during regular business hours.
2.4 Five Day Rule
In the event the Judge or Court Commissioner has rendered an oral ruling which must be reduced to writing, the party drafting such order or judgment will, unless prior approval as to form is obtained in writing, submit the proposed draft to all parties at the time of or before submission to the court. If such submission clearly reflects submission to all parties and reference to the "five (5) day rule," then any objection to the form of such draft by any party must be received by the Register in Probate office within five (5) days of receipt by the court of the draft. If the draft is submitted to the Register in Probate office by mail, then the objection of any party must be received within eight (8) days of mailing. If the final day of the five (5) day period is a holiday or weekend, then the time will be extended through the next business day. Upon the expiration of the five (5) day period, the Judge or Court Commissioner may sign the order or judgment as submitted, alter it as he or she deems appropriate, or schedule the matter for further proceedings.
Rule 3: Adjournment of Hearings
(a) Requests to reschedule hearings before the Judge or Court Commissioner will be considered if submitted in writing to the Register in Probate office within five business days of the initial filing of the notice for hearing. After five days have expired, hearings scheduled before the Judge or Court Commissioner will not be adjourned or rescheduled without written stipulation of all parties filed with the Register in Probate office at least forty-eight (48) hours before the hearing or upon written request to the assigned court official or upon formal motion to the court on the record at the designated time of the hearing.
(b) Requests to reschedule hearings before the Probate Registrar will be considered if submitted, in writing, to the Register in Probate office at least forty-eight (48) hours prior to the scheduled hearing.
(c) A petition or motion will be presented to the Judge, Court Commissioner, or Probate Registrar for decision without hearing upon the filing of waivers and consents signed by all interested parties to the matter. If a hearing has been scheduled, it will be cancelled upon the rendering of a decision by the court official.
Rule 4: Trial Procedure
Discovery, Telephonic Proceedings, Motions and Briefs will be conducted in accordance with the Rules of the Waukesha County Circuit Court Civil Division.
Rule 5: Television/VCR Equipment Policy
5.1 Reservation Schedule
The Register in Probate office is responsible for maintaining the reservation schedule for the use of the equipment. Reservations are on a first-come, first-served basis. Parties will make reservation requests through the Register in Probate office. It is the responsibility of the Register in Probate office to deliver the equipment to the courtroom and to return the equipment to the designated storage area.
5.2 Fees
Unless waived by the court, there will be a charge for the use of the equipment for court proceedings in an amount fixed by the Register in Probate. Pre-payment will be required within 72 hours of the reservation request. Reservation will not be confirmed until receipt of the prepayment amount. All payments will be given to the Register in Probate office for recording and processing.
Rule 6: Guardian ad Litem andAdvocate Counsel
6.1 Generally
Guardians ad litem and Advocate Counsel will be appointed by the court. They will conduct their work in a manner specified by state law, Supreme Court rules and local court rules. They will be required to complete any training program established by the Probate Court Judge or Civil Commitment Judge specifically addressing guardian ad litem and advocate counsel work, prior to their first appointment. They will provide the court with evidence of malpractice insurance.
6.2 Method for Appointment
The Register in Probate office will maintain a list of the members of the Bar, subject to approval by the Probate Court Judge or Civil Commitment Judge, who are interested in appointments. Appointments will be made at the discretion of the presiding court official in the case.
6.3 Notification of Appointment
The Register in Probate office will notify the attorney to be appointed and verify the attorney's availability and acceptance of the appointment.
Rule 7: Estate Matters
7.1 Wills
(a) Only original wills will be accepted for filing with the court without a hearing.
(b) At the time of the filing of a will, the Register in Probate office will be notified as to whether the testator or testatrix is alive and the will is being filed for safekeeping, or whether the testator or testatrix is deceased and the will is being filed as a court record.
7.2 Summary Settlements and Summary Assignments
Proof of Heirship must be filed with all opening papers for Summary Settlement and Summary Assignment.
7.3 Selection of Personal Representative
(a) Only Wisconsin residents may be appointed as Personal Representative of an estate, unless, at the discretion of the court, the nominated non-resident has a Wisconsin resident appointed as co-personal representative, has retained a Wisconsin attorney, or posts bond as determined by the court. Note: all non-resident personal representatives are required to have a resident agent.
(b) The court, on its own motion, may appoint an attorney as Personal Representative to administer and/or close an estate when the court has determined that such appointment is necessary to further the administration of the estate.
7.4 Proof of Heirship
Proof of Heirship will be subscribed and sworn to by a court official
or an attorney or a notary public.
7.5 Hearing or Waiver of Hearing
(a) A court hearing is not required when waivers are filed by interested parties.
(b) Hearings will be held on notice or on waiver at the request of the attorney for the estate or the personal representative, or by order of the Probate Court.
(c) An immediate hearing on a petition for probate may be permitted upon the filing of all required waivers from interested persons, even where publication for a hearing on admission of the will has been ordered.
7.6 Final Account, Final Judgment and Judgment on Claims
A final account, final judgment or judgment on claims is not required in an Informal Probate proceeding.
7.7 Receipts and Releases
(a) Documentation that the residual beneficiaries or heirs have been advised as to the amount of the Personal Representative and attorney fees must be filed with the court.
(b) In a Formal Probate proceeding, proof of the recording of the transfer of any real estate to beneficiaries or heirs must be filed with the court.
7.8 Tax Clearances
(a) A Wisconsin Closing Certificate for Fiduciaries will be filed with the court prior to the closing of any estate.
(b) A Federal Estate Tax Closing Letter and a Wisconsin Certificate Determining Estate Tax must be filed with the court prior to the closing of any estate required to file a Federal Estate Tax Return.
7.9 Closing Estates
(a) When an estate cannot be closed within the statutory time limits, a letter from the attorney for the estate or personal representative (informal probate) or a verified petition (formal probate) requesting an extension of time to close the estate must be filed with the court. If the request is made by petition, it will be heard after notice or on waiver of all interested parties, except as provided in Rule 7.9(b).
(b) The following reasons ordinarily will qualify for a single six (6) month extension of time to close the estate, without notice or waivers as provided in Rule 7.9(a), upon the filing of the required letter or petition:
- The Federal Estate Tax Return has been timely filed and the estate
tax audit has not been completed;
- The Federal and State Income Tax Returns have been timely filed but
the Closing Certificate for Fiduciaries has not been received from the
Wisconsin Department of Revenue; or
- The estate is involved in pending litigation.
(c) All other grounds for extension of time to close the estate will be reviewed by the court for extension of time.
Rule 8: Trust Matters
8.1 Trust Inventory
The trust inventory will be filed within two (2) months of the closing of the probate estate from which the trust originates, or within five (5) months of the initial funding of the trust, whichever event occurs first. If the inventory is not timely filed, the Register in Probate office will notify the attorney for the trust, or if none, the trustee, of the fact that the inventory is due.
8.2 Closing
(a) At the time of termination of a trust, annual accounts for prior years and a final account must be filed with the court. Corporate trustees, who have filed a "Consent Not to File Annual Accounts" are also required to file all accounts at this time. Corporate trustees may include a request that this requirement be waived in the petition to terminate the trust. If the requirement is waived, accounts will not be allowed or approved by the court.
(b) A Wisconsin Closing Certificate for Fiduciaries must be filed with the court before a funded trust may be closed and the trustee discharged.
Rule 9: Guardianship, Conservatorshipand Protective Placment Matters
9.1 Temproary Guardianship
(a) The petitioner for a temporary guardianship will provide the court with proof of the medical or financial emergency that necessitates the appointment of a temporary guardianship.
(b) The court has discretion to appoint a guardian ad litem to review the situation and may require bond from the temporary guardian.
(c) The petitioner will give notice of the petition and appointment of a temporary guardian to the ward and all interested persons. Proof of notice must be filed with the court.
9.2 Conservatorship
(a) A hearing is required for the appointment of a conservator, and the petitioner will be present so the court may determine the action is voluntary.
(b) A hearing is required to voluntarily terminate a conservatorship.
9.3 Guardianship and Protective Placement
(a) Guardian ad Litem
- The court will appoint a guardian ad litem, for the proposed ward, who will file a Guardian ad Litem Report with the court prior to the hearing.
(b) Examining Expert
- The court will appoint an examining expert to prepare a competency report on the proposed ward.
(c) Protective Placement Petitions
- A Petition for Protective Placement may be filed along with or after
a Petition for Guardianship is filed with the court.
- The Waukesha County Department of Health and Human Services will appoint a social worker to complete a Comprehensive Evaluation of the proposed ward and file it with the court.
(d) Protective Placement (WATTS) Reviews
- Protective Placement reviews will originate with the court.
- Guardians ad litem may request an extension of time from the court
of up to three days to file their report with the court. Longer
extensions of time to file must be made in writing and may be granted
for good cause shown.
- If an objection to the protective placement is received, the matter will be scheduled on the Probate Court Commissioner's calendar for further proceedings.
(e) Costs
- In all guardianship and protective placement matters, the following
will be ordered by the court for the recovery of costs: "The ward's
estate and income must be used to pay the fees of any guardian ad litem,
advocate counsel, examining expert and/or comprehensive evaluation to
the extent possible. Waukesha County will pay any remaining balance but
reserves the right to seek reimbursement from the ward's income or
estate. All subsequent guardian ad litem, advocate counsel, examining
expert, and/or comprehensive evaluation fees will be paid in this
manner."
- Payment of all other fees will be determined by the court.
(f) Access to File
- After the guardianship has been ordered, access to the guardianship
file is limited to the guardian, the guardian's attorney (notice of
retainer must be on file), the ward, the ward's attorney, the currently
appointed guardian ad litem or advocate counsel or the currently
assigned social worker.
- Title insurance and abstract companies, by their duly licensed
agents and representatives, may have limited access to information
contained in guardianship files. Access is limited to records showing
the appointment or discharge of a guardian, inventories, annual accounts
and proceedings regarding the sale, lease, exchange or encumbrance of
real estate belonging to the ward.
- Bonding companies, by their duly licensed agents and representatives
may have limited access to information contained in guardianship files.
Access is limited to records showing the appointment or discharge of a
guardian, inventories, and annual accounts.
- Others may obtain access, subject to necessary limitations, by court approval only.
(g) Termination of a Guardianship
- Guardian of the Person - Deceased Ward: Upon the filing of the death
certificate of the ward, the Judge or Probate Court Commissioner
ordinarily will issue an Order of Discharge of the guardian of the
person.
- Guardian of the Estate - Deceased Ward: Upon the filing of: (i) The
death certificate of the ward; (ii) The final account as approved by the
court; and (iii) A proper receipt and release signed by the appropriate
recipient having authority over the ward's estate (with attached proof
of that authority);the Judge or Court Commissioner ordinarily will issue
an Order of Discharge of the guardian of the estate.
- Guardian of the Estate - Minor: Upon the filing of proof of the ward
reaching the age of eighteen, final account and receipt and release
signed by the ward, the Judge or Court Commissioner ordinarily will
issue an Order of Discharge of the guardian of the estate.
- Ward Now Competent: A court hearing is required where an incompetent has regained competency. A petition for discharge of a guardian and an order and notice for hearing will be filed to initiate the action. A competency report must be submitted, or requested to substantiate the petition for termination. The court may require the appointment of a guardian ad litem and an examining expert.
Rule 10: Civil Commitment Matters
10.1 Commencement
All Civil Commitment matters under Chapter 51 originate with the appropriate county Corporation Counsel's office.
10.2 Scheduling and Appointments
The court will arrange for the scheduling of all matters, as well as the appointment of advocate counsel and examining experts.
10.3 Access to File
Access to civil commitment files is limited to the person in need, his or her attorney, appropriate county Corporation Counsel, and such other persons as approved by the court.
Rule 11: Miscellaneous Court Rules
11.1 Hearing Data Sheet
A Hearing Data Sheet will be provided by any attorney submitting documents to the court at a hearing before the Probate Court Commissioner.
11.2 Civil Rules
Except where a specific Probate Court Rule exists, the Rules of the Waukesha County Circuit Court Civil Division will apply.
11.3 Registered Agent
The Register in Probate will not be named as registered agent in any matter.
11.4 Additional Filing Fees
Additional statutory filing fees for added property not reflected on an original inventory must be paid by filing an annual account, a final account, or an amended inventory.
11.5 Certification of Documents
A document, presented to the court at least 72 hours prior to the hearing, will be available for certification on the day of the hearing if the document was signed by the court official at the time of the hearing.
11.6 Removal of Files from Court Areas
Only court personnel will transport court files outside the designated viewing areas for those files, unless allowed by the Court.
