Chapter 859

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.

859.07(1) (1) Notice of the deadline for filing a claim under s. 859.01 shall be given by publication, under s. 879.05 (4), and may be given with the notice for granting letters. The first insertion shall be made within 15 days of the date of the order under s. 859.01.

859.07(2) (2) 

859.07(2)(a) (a) The personal representative shall provide notice of the date set under s. 859.01 to the department of health services, the department of children and families, or the department of corrections, as applicable, and to the county clerk of the decedent’s county of residence, as defined in s. 49.001 (6) if, at any time prior to or at the time of the decedent’s death, any of the following applied:

859.07(2)(a)1. 1. The decedent was a patient or inmate of any state or county hospital or institution.

859.07(2)(a)2. 2. The decedent was responsible for any obligation owing to the state or a county under s. 46.03 (18), 46.10, 48.36, 49.32 (1), 49.345, 301.03 (18), 301.12, or 938.36.

859.07(2)(a)3. 3. The decedent or the decedent’s spouse received services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), 2017 stats., or aid under s. 49.68, 49.683, 49.685, or 49.785.

859.07(2)(b) (b) The notice under par. (a) shall comply with all of the following:

859.07(2)(b)1. 1. The notice shall be in writing on forms provided by the applicable department or county clerk.

859.07(2)(b)2. 2. The notice shall be sent by registered or certified mail not less than 30 days before the date set under s. 859.01.

859.07(3) (3) The personal representative may at any time give notice to any potential claimant of the deadline for filing a claim against the estate under s. 859.01 or 859.48 and of the court in which the estate proceeding is pending.

859.07 History History: 1977 c. 73; 1985 a. 29; 1989 a. 31, 96, 359; 1991 a. 39; 1995 a. 27 ss. 7191b to 7191c, 9126 (19); 1995 a. 77; 1997 a. 237; 1999 a. 9; 2001 a. 107; 2007 a. 20 ss. 3768 to 3769, 9121 (6) (a); 2013 a. 20; 2015 a. 55; 2019 a. 9.

859.07 Annotation Notice to creditors by publication does not violate the due process clause. In Matter of Estate of Fessler, 100 Wis. 2d 437, 302 N.W.2d 414 (1981).

859.09 859.09 Transfer of claims when administration fails. Claims filed against the estate of a decedent following an order and notice to creditors shall, if the administration proceeding fails, be deemed filed upon notice to creditors in a subsequent administration proceeding. If the subsequent proceeding is in a different county, such claims shall be transmitted to and filed in the proper court.

859.13 859.13 Form and verification of claims.

859.13(1) (1) General requirements. No claim shall be allowed unless it is in writing, describes the nature and amount thereof, if ascertainable, and is sworn to by the claimant or someone for the claimant that the amount is justly due, or if not yet due, when it will or may become due, that no payments have been made thereon which are not credited, and that there are no offsets to the knowledge of the affiant, except as therein stated. If the claim is one for which property is available under s. 859.18, the claim shall describe which classification under s. 766.55 (2) is applicable to the claim. The claim shall also show the post-office address of the claimant. The presumption under s. 766.55 (1) applies to the classification of claims for which property is available under s. 859.18.

859.13(2) (2) Requirements when claim founded on written instrument. If a claim is founded on a written instrument which is available, the original or a copy thereof with all endorsements must be attached to the claim.

859.13 History History: 1985 a. 37.

859.13 Cross-reference Cross-reference: See s. 859.19 as to secured claims.

859.13 Note NOTE: As to sub. (1) see notes in 1985 Wis. Act 37, marital property trailer bill.

859.13 Annotation Provisions of sub. (2) are properly construed as directory and not mandatory. In matter of Estate of Alexander, 75 Wis. 2d 168, 248 N.W.2d 475 (1977).

859.13 Annotation A claimant has the burden of proving the existence of an express agreement by a deceased former employer to pay compensation in addition to wages paid during the claimant’s employment. In re Estate of Huber, 81 Wis. 2d 55, 259 N.W.2d 714 (1977).

859.15 859.15 Effect of statute of limitations. Except as provided in ss. 46.10 (11), 49.08, 49.195 (1), 49.345 (11), and 301.12 (11), a claim shall not be allowed that was barred by any statute of limitations at the time of the decedent’s death. A claim shall not be barred by statutes of limitation that was not barred at the time of the decedent’s death if the claim is filed against the decedent’s estate in the court on or before the deadline for filing a claim under s. 859.01.

859.15 History History: 1977 c. 449; 1985 a. 29; 1989 a. 96; 2007 a. 20.

859.15 Cross-reference Cross-reference: See s. 893.03, which provides that the presentation of a claim in circuit court is deemed the commencement of an action.

859.15 Cross-reference Cross-reference: See s. 856.07, which authorizes any creditor of a decedent to petition for the administration of the estate 30 days after the date of death.

859.17 859.17 Claims not due. Upon proof of a claim which will become due at some future time, the court may:

859.17(1) (1) Allow it at the present value and payment may be made as in the case of an absolute claim which has been allowed;

859.17(2) (2) Order the personal representative to retain personally sufficient funds to satisfy the claim upon maturity; or

859.17(3) (3) Order a bond to be given by the distributees for payment in satisfaction of the claim and the estate may be closed.

859.17 History History: 1985 a. 332.

859.18 859.18 Satisfaction of obligations at death of a spouse.

859.18(1) (1) In this section:

859.18(1)(a) (a) “Credit” means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for the property or services.

859.18(1)(b) (b) “Creditor” means a person who regularly extends credit.

859.18(2) (2) At the death of a spouse, property, including the proceeds of or property exchanged for that property, that but for the death of the spouse would have been available under s. 766.55 (2) for satisfaction of an obligation continues to be available for satisfaction, except as provided in subs. (3) to (5).

859.18(3) (3) Unless the obligation resulted from an extension of credit or from a tax obligation to this state, upon the death of a spouse who was the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d):

859.18(3)(a) (a) No income of the surviving spouse is available for satisfaction of an obligation described under s. 766.55 (2).

859.18(3)(b) (b) Marital property of the surviving spouse, if otherwise available for satisfaction of an obligation described under s. 766.55 (2), is available to the extent of the value of the marital property at the death of the decedent spouse.

859.18(4) (4) 

859.18(4)(a) (a) If the decedent spouse was the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d), the following property is not available for satisfaction of the obligation:

859.18(4)(a)1. 1. Survivorship marital property, except as provided in s. 766.60 (5) (b) and (c).

859.18(4)(a)2. 2. Joint tenancy property in which the decedent spouse was a tenant, subject to any judgment lien on which execution was issued before the spouse’s death.

859.18(4)(a)3. 3. Deferred employment benefits arising from the decedent spouse’s employment.

859.18(4)(a)4. 4. Proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent’s estate and not assigned to the creditor as security or payable to the creditor.

859.18(4)(b) (b) If the surviving spouse is the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d), the following property transferred to a person other than the surviving spouse is not available for satisfaction:

859.18(4)(b)1. 1. The decedent’s interest in joint tenancy property, subject to any judgment lien on which execution was issued before the decedent’s death.