Chapter 856

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.

856.15(1) (1) Generally. The court may grant probate of an uncontested will on the execution in open court by one of the subscribing witnesses of a sworn statement that the will was executed as required by the statutes and that the testator was of sound mind, of full age, and not acting under any restraint at the time of the execution thereof. If an uncontested will contains an attestation clause showing compliance with the requirements for execution under s. 853.03 or 853.05 or includes an affidavit in substantially the form under s. 853.04 (1) or (2), the court may grant probate without any testimony or other evidence.

856.15(2) (2) Proof outside the county. Upon request of the petitioner, the petitioner’s attorney or, if the petitioner is in the military service, the petitioner’s attorney-in-fact, the court in which the estate is pending may by order direct that proof of heirs or proof of will, if uncontested, may be taken in open court in any county in this state, or by a judge having probate jurisdiction in any other state or territory of the United States, for use in the court in which the estate is pending.

856.15(3) (3) Removal of will for proof outside the county. If a will filed for probate is removed from the court in which the estate is pending so that it may be proved outside the county, it shall during its absence be replaced by a photographic copy or a certified copy thereof.

856.15(4) (4) Will and proof to be returned and filed. After a will is proved in a court other than the court in which the estate is pending, the will and the proof of will shall be sent to the court in which the estate is pending. If no contest develops at the time fixed for proving the will in the court in which the estate is pending, the will and proof of will shall be filed as though made in the court in which the estate is pending.

856.15(5) (5) When no competent subscribing witness in state. If no competent subscribing witness resides in this state at the time fixed for proving the will or if none of them, after reasonable diligence can be found in this state, the court may admit the testimony of other witnesses to prove the competency of the testator, the execution, proof of testator’s handwriting and that of one of the subscribing witnesses.

856.15 History History: 1975 c. 331; 1977 c. 449; 1991 a. 220; 2005 a. 216.

856.15 Cross-reference Cross-reference: See s. 863.23 which contains the general provisions in regard to proof of heirship and determination of heirship.

856.16 856.16 Self-proved will.

856.16(1) (1) Unless there is proof of fraud or forgery in connection with the affidavit, if a will includes an affidavit in substantially the form under s. 853.04 (1) or (2), all of the following apply:

856.16(1)(a) (a) The will is conclusively presumed to have been executed in compliance with s. 853.03.

856.16(1)(b) (b) Other requirements related to the valid execution of the will are rebuttably presumed.

856.16(1)(c) (c) A signature affixed to the affidavit is considered a signature affixed to the will, if necessary to prove the due execution of the will.

856.16(2) (2) Admission of a will under s. 856.13 or 856.15 is not dependent on the existence of a valid affidavit under s. 853.04.

856.16 History History: 1997 a. 188; 2005 a. 216.

856.17 856.17 Missing will, how proved. If any will is lost, destroyed by accident, destroyed without the testator’s consent, unavailable but revived under s. 853.11 (6), or otherwise missing, the court has power to take proof of the execution and validity of the will and to establish the same. The petition for the probate of the will shall set forth the provisions of the will.

856.17 History History: 1977 c. 449; 2005 a. 216.

856.17 Annotation A petition in the alternative to establish one of 3 wills was proper and proof was sufficient to establish the last will as effective. Estate of Markofske, 47 Wis. 2d 769, 178 N.W.2d 9.

856.17 Annotation Lost wills: The Wisconsin law. Burrell and Porter, 60 MLR 351.

856.19 856.19 Order admitting will. Every will, when admitted to probate as prescribed by statute, shall have that fact signified thereon by the court.

856.19 Annotation Without a prima facie showing of fraud, a mere allegation is not sufficient to require a court to reopen the admission of a will to probate after the time for appeal expired. In Matter of Estate of Kennedy, 74 Wis. 2d 413, 247 N.W.2d 75.

856.21 856.21 Persons entitled to domiciliary letters. Letters shall be granted to one or more of the persons hereinafter mentioned, who are not disqualified, in the following order:

856.21(1) (1) The person named in the will to act as personal representative.

856.21(2) (2) Any person interested in the estate or the person’s nominee within the discretion of the court.

856.21(3) (3) Any person whom the court selects.

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

856.21 Annotation An attorney may not solicit, either directly or indirectly, to be named, or to have a relative named, executor in a will. State v. Gulbankian, 54 Wis. 2d 605, 196 N.W.2d 733 (1972).

856.23 856.23 Persons who are disqualified.

856.23(1) (1) A person including the person named in the will to act as personal representative is not entitled to receive letters if the person is any of the following:

856.23(1)(a) (a) Under 18 years of age.

856.23(1)(b) (b) Of unsound mind.

856.23(1)(c) (c) A corporation not authorized to act as a fiduciary in this state.

856.23(1)(d) (d) A nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and filed the appointment with the court.

856.23(1)(e) (e) A person whom the court considers unsuitable for good cause shown.

856.23(2) (2) Nonresidency may be a sufficient cause for nonappointment or removal of a person in the court’s discretion.

856.23 History History: 1971 c. 213 s. 5; 1993 a. 486; 2001 a. 102.

856.23 Annotation A nominee may not be found “unsuitable” except upon grounds pertaining to capacity or competence to administer the estate. State ex rel. First National Bank & Trust v. Skow, 91 Wis. 2d 773, 284 N.W.2d 74 (1979).

856.23 Annotation Under this section and former s. 856.29, 1989 stats., if a trust document allows the beneficiaries to select a successor trustee but does not specifically allow appointment without court approval, the instrument should be read to permit nomination of a trustee subject to court approval. First Wisconsin National Bank of Oshkosh v. Circuit Court, 167 Wis. 2d 196, 482 N.W.2d 118 (Ct. App. 1992).

856.23 Annotation A finding of unsuitability is not limited solely to concerns of incapacity or incompetency. Given the myriad circumstances in which conflicts of interests may arise a conflicting personal interest may prevent an executor or administrator from doing his or her duty and render him or unsuitable. But disputes over what assets are included in the estate do not render a person unsuitable. Section 859.09 provides the framework for addressing such disagreements. Klauser v. Schmitz, 2003 WI App 157, 265 Wis. 2d 860, 667 N.W.2d 862, 02-3260.

856.23 Annotation A resident agent appointed under this section is not an indispensable party in an action involving the estate. Bugbee v. Donahue, 483 F. Supp. 1328 (1980).

856.25 856.25 Bond of personal representative.

856.25(1) (1) Generally. A person shall not act as personal representative, nor shall letters be issued to the person until the person has given a bond in accordance with ch. 878, with one or more sureties, conditioned on the faithful performance of the person’s duties, to the judge of the court, or until the court has ordered that the person be appointed without being required to give bond. If the court does not require a personal representative to give bond prior to the personal representative’s letters being issued, the court may require the personal representative to give bond at any later time. The requirement of a bond and the amount of the bond is solely within the discretion of the court, except that no bond shall be required of any trust company bank, state bank or national banking association which is authorized to exercise trust powers and which has complied with s. 220.09 or 223.02.

856.25(2) (2) When 2 or more personal representatives. If 2 or more persons are appointed personal representatives, the judge may require no bond, may take a bond from each, take a joint bond from all or take a bond from some but not all.

856.25(3) (3) Share of estate can stand as excess surety. If any distributee, including one serving as personal representative, stipulates to a reduction of the bond and that the distributee’s share of the estate stand as excess surety to the extent of the reduction, the judge may reduce the bond by an amount equal to the estimated share of such distributee.

856.25(4) (4) When will waives bond. A direction or request in a will that the personal representative serve without bond is not binding on the court.

856.25(5) (5) Section 895.345 not to apply. Section 895.345 does not apply to bonds of personal representatives.

856.25 History History: 1993 a. 486.

856.27 856.27 Appointment of special administrator if appointment of personal representative is delayed. If for any cause, a personal representative is not appointed in an estate at the hearing on appointment, the court at the hearing shall appoint a special administrator to administer the estate until a personal representative is appointed.

856.29 856.29 Appointment of testamentary trustee. If the will of the decedent provides for a testamentary trust, the court shall appoint the trustee upon admission of the will to probate at the same time that letters are granted to the personal representative, unless the court otherwise directs. The trustee so appointed shall continue to be interested in the estate, and beneficiaries in the testamentary trust shall cease to be interested in the estate except under s. 851.21 (3). Letters of trust shall not be required to evidence the authority of a testamentary trustee and a certification of trust under s. 701.1013 shall be sufficient evidence of such authority. This section shall apply to wills admitted to informal probate and letters issued in informal administrations.

856.29 History History: 1973 c. 39; 2023 a. 127.

856.29 Annotation Under s. 856.23 and former s. 856.29, 1989 stats., if a trust document allows beneficiaries to select a successor trustee but does not specifically allow appointment without court approval, the instrument should be read to permit nomination of a trustee subject to court approval. First Wisconsin National Bank of Oshkosh v. Circuit Court, 167 Wis. 2d 196, 482 N.W.2d 118 (Ct. App. 1992).

856.29 Annotation A trustee has a duty to the trust beneficiaries to ensure that the personal representative transfers all property to which the trust is entitled. Even when the same person acts as trustee and personal representative the trustee has a duty to enforce claims the trust has against the personal representative. Old Republic Surety Co. v. Erlien, 190 Wis. 2d 400, 527 N.W.2d 389 (Ct. App. 1994).

856.31 856.31 Selection of attorney to represent estate. Whenever a corporate fiduciary is appointed as the sole personal representative, the person or persons receiving the majority interest from the estate may within 30 days after the date of the appointment select the attorney who shall represent the personal representative in all proceedings of any kind or nature, unless good cause is shown before the court why selection should not be so made, or unless the testator’s will names the attorney or firm who shall represent the personal representative. The corporate fiduciary shall notify the persons who are entitled to name the attorney of this right within 5 days after appointment. In case a person is under disability, the court appointed guardian, if any, may act for such person under this section. In the case of a minor who has no court appointed guardian, the natural guardian, if any, may act for the minor. “Interest”, as used in this section, means beneficial interest whether legal or equitable.

856.31 History History: 1973 c. 233; 1975 c. 331, 421.

856.31 Annotation An attorney may not solicit, either directly or indirectly, to be named, or to have a relative named, executor in a will. State v. Gulbankian, 54 Wis. 2d 605, 196 N.W.2d 733 (1972).

856.31 Annotation A will provision directing that the named attorney represent the estate was upheld. In re Estate of Devroy, 109 Wis. 2d 154, 325 N.W.2d 345 (1982).