Chapter 856

CHAPTER 856

OPENING ESTATES

856.01   Jurisdiction.

856.03   Wills in court for safekeeping.

856.05   Delivery of will to court.

856.07   Who may petition for administration.

856.09   Petition for administration, contents.

856.11   Notice of hearing on petition for administration.

856.13   Will must be proved; informal probate.

856.15   Proof of will and proof of heirs where uncontested.

856.16   Self-proved will.

856.17   Missing will, how proved.

856.19   Order admitting will.

856.21   Persons entitled to domiciliary letters.

856.23   Persons who are disqualified.

856.25   Bond of personal representative.

856.27   Appointment of special administrator if appointment of personal representative is delayed.

856.29   Appointment of testamentary trustee.

856.31   Selection of attorney to represent estate.

Ch. 856 Cross-reference Cross-reference: See definitions in ch. 851.

856.01 856.01 Jurisdiction. The jurisdiction of a proceeding for administration of a decedent’s estate is as follows:

856.01(1) (1) If the decedent was domiciled in this state, in the county in this state where the decedent was domiciled at the time of the decedent’s death.

856.01(2) (2) If the decedent had no domicile in this state, in any county in this state where property of the decedent is located, and the court which first exercises jurisdiction under this subsection has exclusive jurisdiction.

856.01 History History: 1977 c. 449; 1993 a. 486.

856.01 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

856.03 856.03 Wills in court for safekeeping. If a will has been filed with a court for safekeeping during the testator’s lifetime, the court on learning of the death of the testator shall open the will and give notice of the court’s possession to the person named in the will to act as personal representative, otherwise to some person interested in the provisions of the will. If probate jurisdiction belongs to any other court, the will shall be delivered to that court.

856.03 History History: 1977 c. 449; 2001 a. 102.

856.05 856.05 Delivery of will to court.

856.05(1) (1) Duty and liability of person with custody. Any person, other than a person named in the will to act as personal representative, having the custody of any will shall, within 30 days after he or she has knowledge of the death of the testator, file the will in the proper court or deliver it to the person named in the will to act as personal representative. Any person named in a will to act as personal representative shall, within 30 days after he or she has knowledge that he or she is named to act as personal representative, and has knowledge of the death of the testator, file the will in the proper court, unless the will has been otherwise deposited with the court. Any person who neglects to perform any of the duties required in this subsection, without reasonable cause, is liable in a proceeding in court to every person interested in the will for all damages caused by the neglect.

856.05(2) (2) Duty of person with information. Any person having information which would reasonably lead him or her to believe in the existence of any will of a decedent of which he or she does not have custody and having information that no more recent will of the deceased has been filed with the court and that 30 days have elapsed after the death of the decedent, shall submit this information to the court within 30 days after he or she has the information.

856.05(3) (3) Penalty. Any person who with intent to injure or defraud any person interested in a will suppresses or secretes any will of a person then deceased or any information as to the existence or location of any will or having custody of any will fails to file it in the court or to deliver it to the person named in the will to act as personal representative shall be fined not more than $500 or imprisoned in the county jail for not more than one year or both.

856.05(4) (4) Liability for neglect. If any person has custody of any will after the death of the testator and after a petition for administration has been filed, neglects without reasonable cause to deliver the will to the proper court after he or she has been duly notified in writing by the court for that purpose, he or she may be committed to the county jail by warrant issued by the court and there kept in close confinement until he or she delivers the will as required.

856.05(5) (5) Applicability of section. This section applies to wills and information needed for proof of a missing will under s. 856.17.

856.05 History History: 1977 c. 449; 1997 a. 188; 2001 a. 102; 2005 a. 216.

856.07 856.07 Who may petition for administration.

856.07(1) (1) Generally. Petition for administration of the estate of a decedent may be made by any person named in the will to act as personal representative or by any person interested.

856.07(2) (2) After 30 days. If none of those named in sub. (1) has petitioned within 30 days after the death of the decedent, petition for administration may be made by any person who was guardian of the decedent at the time of the decedent’s death, any creditor of the decedent, anyone who has a cause of action or who has a right of appeal which cannot be maintained without the appointment of a personal representative or anyone who has an interest in property which is or may be a part of the estate.

856.07 History History: 1973 c. 90; 2001 a. 102.

856.07 Cross-reference Cross-reference: See s. 879.57 providing for a petition by any interested person for a special administrator when there appears to be no person in the state to petition for administration.

856.09 856.09 Petition for administration, contents. The petition for administration shall comply with s. 879.01 and in addition shall state:

856.09(1) (1) The name, age, domicile, post-office address and date of death of the decedent;

856.09(2) (2) That the decedent left property requiring administration;

856.09(3) (3) Whether the decedent left a will and the date of execution of the will;

856.09(4) (4) The name and post-office address of the person named in the will to act as personal representative;

856.09(5) (5) The name and post-office address of the person named as testamentary trustee in the will;

856.09(6) (6) The name and post-office address of the person for whom letters are asked and the facts which show the person’s eligibility for appointment as personal representative.

856.09 History History: 1993 a. 486; 2001 a. 102.

856.09 Cross-reference Cross-reference: See s. 863.23 providing for a petition for determination of heirship in a petition for administration.

856.09 Cross-reference Cross-reference: See s. 879.25 for requirement of filing of an affidavit as to military service.

856.09 Cross-reference Cross-reference: See ss. 813.22 to 813.34, Uniform Absence as Evidence of Death and Absentee’s Property Act, for a procedure for determining the fact of death when evidence is not available.

856.11 856.11 Notice of hearing on petition for administration. When a petition for administration is filed, the court shall set a time for proving the will, if any, for determination of heirship and for the appointment of a personal representative. Notice of hearing on the petition shall be given as provided in s. 879.03 with the additional requirement that when any person interested is represented by a guardian ad litem, notice shall be given to both the person interested and the person’s guardian ad litem. A copy of the will which is being presented for proof shall be sent to all persons interested, except those whose only interest is as a beneficiary of a monetary bequest or a bequest or devise of specific property. To those persons a notice of the nature and amount of the devise or bequest shall be sent.

856.11 History History: 1993 a. 486.

856.11 Cross-reference Cross-reference: See s. 863.23 which provides for determination of heirship and proof of heirship.

856.11 Annotation When the heirs at law had not been heard from for 30 to 40 years, published notice of hearing on proof of the will was legal notice to the heirs under s. 856.11. In re Estate of Phillips, 92 Wis. 2d 354, 284 N.W.2d 908 (1979).

856.11 Annotation In probate actions, as in civil cases generally, the burden is on the petitioner to move the case forward. Theis v. Short, 2010 WI App 108, 328 Wis. 2d 162, 789 N.W.2d 585, 09-1591.

856.13 856.13 Will must be proved; informal probate. No will shall pass any property unless it has been proved and admitted to probate or informally admitted to probate under ch. 865.

856.13 History History: 1973 c. 39.

856.15 856.15 Proof of will and proof of heirs where uncontested.