Chapter 859

CHAPTER 859

PROBATE — CLAIMS

859.01   Time for filing claims.

859.02   Limitation on claims.

859.03   Continuance of separate action.

859.07   Notice; publication.

859.09   Transfer of claims when administration fails.

859.13   Form and verification of claims.

859.15   Effect of statute of limitations.

859.17   Claims not due.

859.18   Satisfaction of obligations at death of a spouse.

859.19   Secured claims.

859.21   Contingent claims.

859.23   Payment of contingent claims by distributees.

859.25   Priority of payment of claims and allowances.

859.27   Execution and levies prohibited.

859.29   Persons interested may be informed of claims.

859.31   Compromise of claims.

859.33   Contest of claims; procedure.

859.35   Prompt judgment; hearing if claim filed over one year.

859.37   Judgment on claims.

859.39   Delay of payment of claims when funds are insufficient.

859.40   Creditor’s action for property not inventoried.

859.41   Creditor’s action for property fraudulently sold by decedent.

859.43   Encumbered assets; payment of debt.

859.45   Tort claims.

859.47   Payment of unfiled claims.

859.48   Claims of creditors without notice.

859.49   Last illness and funeral expense of deceased spouse.

859.51   No impediment to summary settlement.

Ch. 859 Cross-reference Cross-reference: See definitions in ch. 851.

859.01 859.01 Time for filing claims. When an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent’s estate. The date shall be not less than 3 nor more than 4 months from the date of the order. If a claim is not filed by the deadline, the consequences provided in s. 859.02 apply.

859.01 History History: 1989 a. 96; 2005 a. 216.

859.01 Annotation The statute of limitations concerning claims filed against an estate in probate may not be waived. Estate of Palmer, 68 Wis. 2d 101, 227 N.W.2d 680 (1975).

859.02 859.02 Limitation on claims.

859.02(1) (1) Except as provided in sub. (2) and s. 859.03, all claims against a decedent’s estate including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, are barred against the estate, the personal representative and the heirs and beneficiaries of the decedent unless filed on or before the date set under s. 859.01.

859.02(2) (2) A claim against a decedent’s estate that is not filed on or before the date set under s. 859.01 is not barred if:

859.02(2)(a) (a) It is a claim based on tort, on a marital property agreement that is subject to the time limitations under s. 766.58 (13) (b) or (c), on Wisconsin income, franchise, sales, withholding, gift, or death taxes, or on unemployment insurance contributions due or benefits overpaid; a claim for funeral or administrative expenses; a claim of this state under s. 46.27 (7g), 2017 stats., or s. 49.496, 49.682, or 49.849; or a claim of the United States; or

859.02(2)(b) (b) All of the following circumstances exist:

859.02(2)(b)1. 1. On or before the date set under s. 859.01, the personal representative knew, or in the exercise of reasonable diligence should have known, of the existence of the potential claim and of the identity and mailing address of the potential claimant.

859.02(2)(b)2. 2. At least 30 days prior to the date set under s. 859.01, the personal representative had not given notice to the potential claimant of the final day for filing his or her claim and the court in which the estate proceeding was pending.

859.02(2)(b)3. 3. At least 30 days prior to the date set under s. 859.01, the claimant did not have actual knowledge that the estate proceeding was pending and of the court in which that proceeding was pending.

859.02(2m) (2m) 

859.02(2m)(a) (a) A claim based on a tort is subject to s. 859.45.

859.02(2m)(b) (b) A claim of a creditor without notice is subject to s. 859.48.

859.02(3) (3) Failure of a claimant timely to file a claim against a decedent’s estate does not bar the claimant from satisfying the claim not otherwise barred from property other than the decedent’s estate.

859.02 History History: 1989 a. 96; 1991 a. 39, 89, 301; 1995 a. 27; 1997 a. 39; 1999 a. 9; 2005 a. 216; 2013 a. 20; 2019 a. 9; 2021 a. 239 s. 74; 2023 a. 127.

859.02 Cross-reference Cross-reference: See s. 893.93 (1) (c), which bars all claims against a decedent or the estate if administration not commenced within 6 years after death.

859.02 Cross-reference Cross-reference: See s. 859.45 as to tort claims.

859.02 Annotation An otherwise valid lease and sale of personal property executed by the decedent are not claims against the estate subject to the limitations of this section. In re Estate of Taylor, 81 Wis. 2d 687, 260 N.W.2d 803 (1978).

859.02 Annotation A claim against an estate for personal services rendered during an adulterous relationship with the deceased was allowed under a quasi-contract theory. In Matter of Estate of Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980).

859.02 Annotation The mere fact that the personal representative corresponded with creditors about accounts payable did not give rise to a fiduciary duty on the part of the personal representative to disclose information about filing claims. In Matter of Estate of Lecic, 104 Wis. 2d 592, 312 N.W.2d 773 (1981).

859.02 Annotation The testator’s breach of contract in failing to make certain provisions by will is not actionable in tort. Landwehr v. Citizens Trust Co. 110 Wis. 2d 716, 329 N.W.2d 411 (1983).

859.02 Annotation Probate filing deadlines for surviving spouses under a marital property regime. Rasmussen and Brown. WBB June 1988.

859.03 859.03 Continuance of separate action. If an action is pending against a decedent at the time of his or her death and the action survives, the plaintiff in that action may serve a notice of substitution of party defendant on the personal representative and file proof of service of notice in the court. Filing of proof of service on or before the deadline for filing a claim under s. 859.01 gives the plaintiff the same rights against the estate as the filing of a claim. A judgment in any such action constitutes an adjudication for or against the estate.

859.03 History History: 1977 c. 449; 1989 a. 96.

859.03 Annotation When disposition of a homestead was ordered in a divorce judgment, the family court and probate court had concurrent jurisdiction and the divorce judgment remained enforceable by the family court. Morrissette v. Morrissette, 99 Wis. 2d 467, 299 N.W.2d 590 (Ct. App. 1980).

859.07 859.07 Notice; publication.