Chapter 857

CHAPTER 857

POWERS AND DUTIES OF PERSONAL REPRESENTATIVES

857.01   Ownership in personal representative; management and control.

857.015   Management and control of certain business property by holding spouse.

857.03   Powers and duties of personal representative; in general.

857.035   Disposition of patient health care records.

857.04   Distribution of marital and other expenses.

857.05   Allowances to personal representative for expenses and services.

857.07   Allowances to personal representative for costs.

857.09   Procedure which may be followed when personal representative fails to perform.

857.10   Failure to comply with certain statutes.

857.11   Ordering personal representative to appear; costs.

857.13   Powers of surviving personal representative.

857.15   When personal representative removed, resigns.

857.17   Validity of acts of personal representative prior to removal.

857.19   When will proved after letters issued.

857.21   Appointment of successor personal representative.

857.23   Rights and powers of successor personal representative.

857.25   Continuation of business.

857.27   Personal representatives or trustees may form corporation or limited liability company.

857.29   Personal representative may plat land.

857.31   Immunity of personal representative.

857.35   Notification of spouse.

Ch. 857 Cross-reference Cross-reference: See definitions in ch. 851.

857.01 857.01 Ownership in personal representative; management and control. Upon his or her letters being issued by the court, the personal representative succeeds to the interest of the decedent in all property of the decedent. The personal representative or surviving spouse may petition the court for an order determining the classification of property under ch. 766, and for other equitable relief necessary for management and control of the marital property during the administration of the estate. The court may make any decree under ch. 766, including a decree that the property be titled in accordance with its classification, to assist the personal representative or surviving spouse in managing and controlling the marital property and the decedent’s property other than marital property during administration of the estate. During administration, the management and control rules under s. 766.51 apply to the property of a decedent spouse which is subject to administration and to the property of the surviving spouse. With regard to property subject to the election of the surviving spouse under s. 861.02, the personal representative may manage and control the property while the property is subject to administration. The personal representative shall determine when, during administration, property shall be distributed to satisfy an election under s. 861.02.

857.01 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1997 a. 188.

857.01 Annotation A personal representative succeeds to the title of the decedent both as to real estate and personal property. In Matter of Estate of Omernik, 112 Wis. 2d 285, 332 N.W.2d 307 (1983).

857.015 857.015 Management and control of certain business property by holding spouse. A spouse who holds property described under s. 766.70 (3) (a), (aL), (b), or (d) which is not also held by the other spouse may direct in a will or other signed writing that the marital property interest of the nonholding spouse in such property be satisfied as provided under s. 861.015. The holding spouse shall identify in a will or other signed writing the property described under s. 766.70 (3) (a), (aL), (b), or (d) to which the directive applies. The signature of the holding spouse on a directive other than a will shall be acknowledged, attested or witnessed under ch. 140. The estate of the holding spouse may not execute a directive under this section. If at the death of a spouse the surviving spouse is the holding spouse, the surviving spouse may execute a directive under this section if executed within 90 days after the decedent spouse’s death.

857.015 History History: 1987 a. 393; 1997 a. 188; 2019 a. 125; 2021 a. 258.

857.03 857.03 Powers and duties of personal representative; in general.

857.03(1) (1) The personal representative shall collect, inventory and possess all the decedent’s estate; collect all income and rent from decedent’s estate; manage the estate and, when reasonable, maintain in force or purchase casualty and liability insurance; contest all claims except claims which the personal representative believes are valid; pay and discharge out of the estate all expenses of administration, taxes, charges, claims allowed by the court, or such payment on claims as directed by the court; render accurate accounts; make distribution and do any other things directed by the court or required by law.

857.03(2m) (2m) The surviving spouse and the personal representative may petition the court to approve an exchange of interests in marital property as provided in s. 766.31 (3) (b) 3.

857.03 History History: 1975 c. 331, 421; 1987 a. 393; 2005 a. 216.

857.03 Cross-reference Cross-reference: Ch. 877 deals generally with actions by and against personal representatives.

857.03 Cross-reference Cross-reference: Section 70.22 deals with assessment of personal property taxes on property in decedent’s estates.

857.03 Cross-reference Cross-reference: Section 71.13 (2) requires the personal representative to file with the assessor of incomes such withholding tax returns (reports) for wages paid, sales tax returns and income tax returns as are due from the decedent and his estate.

857.03 Annotation As the holder of legal title to the assets of the estate, the personal representative has standing to bring a constitutional challenge against the statute upon which the claim of the appellant is based. Estate of Peterson, 66 Wis. 2d 535, 225 N.W.2d 644 (1975).

857.03 Annotation The personal representative’s failure to inform the trial court that the high bidders in a sale of the testator’s property had been occasional clients did not constitute a breach of fiduciary duty when the sale was publicly advertised, conducted under sealed bid, and authorized as to procedure by both the court and estate beneficiaries. Estate of Philbrick, 68 Wis. 2d 776, 229 N.W.2d 573 91975).

857.03 Annotation In the absence of a statute or a decedent’s written directions, the burden of the federal and state estate taxes attributable to probate and nonprobate assets falls on the residue of the estate. The rationale for the “residuary rule” has generally been that the decedent intended property transferred outside probate to be free of the usual burdens imposed on the probate estate. Estate of Sheppard v. Schleis, 2010 WI 32, 324 Wis. 2d 41, 782 N.W.2d 85, 09-1021.

857.035 857.035 Disposition of patient health care records. If the decedent was a health care provider, as defined under s. 146.81 (1), who was an independent practitioner, the personal representative shall comply with s. 146.819.

857.035 History History: 1991 a. 269.

857.04 857.04 Distribution of marital and other expenses.

857.04(1) (1) Except as provided in sub. (2), the personal representative shall pay expenses of administration out of the decedent’s interests in marital property and in property other than marital property on a prorated basis according to the value of those interests.

857.04(2) (2) To the extent possible, the personal representative shall pay special expenses attributable to the management and control of marital property from the marital property generating the expenses, and special expenses attributable to the management and control of the decedent’s property other than marital property from the other property generating the expenses.

857.04 History History: 1983 a. 186.

857.05 857.05 Allowances to personal representative for expenses and services.

857.05(1) (1) Expenses. The personal representative shall be allowed all necessary expenses in the care, management and settlement of the estate.

857.05(2) (2) Services. Subject to the approval of the court the personal representative shall be allowed for his or her services commissions computed on the inventory value of the property for which the personal representative is accountable less any mortgages or liens plus net principal gains in the estate proceedings at a rate of 2 percent or a rate that the decedent and the personal representative, or the persons who receive the majority interest in the estate and the personal representative, agree to in writing; and such further sums in cases of unusual difficulty or extraordinary services as the court determines reasonable. If a personal representative is derelict in duty, his or her compensation for services may be reduced or denied.

857.05(3) (3) Attorney fees and commissions. If the personal representative or any law firm with which the personal representative is associated also serves as attorney for the decedent’s estate, the court may allow him or her either executor’s commissions, (including sums for any extraordinary services as set forth in sub. (2)) or attorney fees. The court may allow both executor’s commissions and attorney fees, and shall allow both if the will of the decedent authorizes the payments to be made.

857.05 History History: 1977 c. 449; 1979 c. 110 s. 60 (4); 1991 a. 124.

857.05 Annotation The personal representative’s failure to communicate with one of the heirs, in violation of a court order, was an appropriate basis for reducing the personal representative’s fees. In Matter of Estate of Huehne, 175 Wis. 2d 33, 498 N.W.2d 870 (Ct. App. 1993).

857.05 Annotation Sub. (3) allows an attorney to act as both personal representative and attorney for an estate but does not allow charging at the usual attorney’s billing rate for nonprofessional services. Sherman v. Hagness, 195 Wis. 2d 225, 536 N.W.2d 133 (Ct. App. 1995), 94-2089.

857.05 Annotation A personal representative’s obligation under a bond to reimburse the surety company’s attorney fees incurred on the bond was an allowable expense of the personal representative under this section. Estate of Burgess v. Peterson, 214 Wis. 2d 180, 571 N.W.2d 432 (Ct. App. 1997), 96-1455.

857.05 Annotation Sub. (1) did not authorize payment for attorney’s services when it was in the estate’s interest to let the interested parties litigate an issue and when, if the attorney’s position prevailed, no property would have been added to the estate. Bell v. Neugart, 2002 WI App 180, 256 Wis. 2d 969, 650 N.W.2d 52, 01-2533.

857.07 857.07 Allowances to personal representative for costs. When costs are allowed against a personal representative in any action or proceeding the same shall be allowed the personal representative in the personal representative’s administration account unless it appears that the action or proceeding in which the costs were taxed was prosecuted or resisted without just cause on the personal representative’s part; and the court may determine, in rendering the judgment, whether the costs shall be paid out of the estate or by the personal representative. The court may allow as costs the sum paid by a personal representative on any bond or undertaking given by the personal representative in the case.

857.07 History History: 1993 a. 486.

857.07 Annotation A personal representative’s obligation under a bond to reimburse the surety company’s attorney fees incurred on the bond was an allowable expense of the personal representative under this section. Estate of Burgess v. Peterson, 214 Wis. 2d 180, 571 N.W.2d 432 (Ct. App. 1997), 96-1455.

857.09 857.09 Procedure which may be followed when personal representative fails to perform. If a personal representative fails to perform an act or file a document within the time required by statute or order of the court the court upon its own motion or upon the petition of any person interested may order the personal representative for the estate and his or her attorney to show cause why the act has not been performed or the document has not been filed and shall mail a copy of the order to the sureties on the bond of the personal representative. If cause is not shown the court shall determine who is at fault. If both are at fault, the court may dismiss both and then appoint a personal representative and appoint an attorney acceptable to the personal representative to complete the administration of the estate. If only the personal representative is at fault, he or she may be summarily dismissed and in that event the court shall then appoint another personal representative to complete the administration and close the estate. If only the attorney is at fault, the court may dismiss the attorney and instruct the personal representative to employ another attorney; if the personal representative fails to employ another attorney within 30 days, the court shall appoint an attorney. No other procedure for substitution of attorney is required in such cases. The procedure set forth in this section is not exclusive.