Chapter 859

859.18(5)(b) (b) The availability of a spendthrift trust described under subch. V of ch. 701 is subject to subch. V of ch. 701.

859.18(5)(c) (c) The availability of an account governed under subch. I of ch. 705 is subject to s. 705.07.

859.18(6) (6) A provision in a marital property agreement, as defined under s. 766.01 (12), which provides for the disposition of either or both spouses’ property upon the death of a spouse does not affect property available under this section for satisfaction unless that property was not available for satisfaction under the marital property agreement while both spouses were alive and the agreement is binding on the creditor under s. 766.55 (4m) or 766.56 (2) (c).

859.18 History History: 1985 a. 37; 1989 a. 331; 1991 a. 301; 2013 a. 92.

859.18 Note NOTE: 1985 Wis. Act 37 and 1991 Wis. Act 301 contain explanatory notes.

859.19 859.19 Secured claims.

859.19(1) (1) When a creditor holds any security for a claim the security shall be described in the claim, and the judgment allowing the claim shall describe the security. The security is sufficiently described if the security document is described by date and by the recording or filing data.

859.19(2) (2) Payment of the claim shall be upon the basis of:

859.19(2)(a) (a) The full amount thereof if the creditor surrenders the security; or

859.19(2)(b) (b) If the creditor realizes on the security before receiving payment, then upon the full amount of the claim allowed less the fair value of the security.

859.19 History History: 1985 a. 332.

859.19 Cross-reference Cross-reference: See s. 859.13, which deals with the form and verification of claims generally.

859.19 Cross-reference Cross-reference: See s. 859.43, which deals with the payment of secured claims.

859.19 Cross-reference Cross-reference: See s. 863.13, which deals with the exoneration of encumbered property.

859.21 859.21 Contingent claims. If the amount or validity of a claim cannot be determined until some time in the future, the claim is a contingent claim regardless of whether the claim is based on an event which occurred in the past or on an event which may occur in the future. Except for claims of the type not required to be filed under s. 859.02, contingent claims which cannot be allowed as absolute must, nevertheless, be filed in the court and proved in the same manner as absolute claims. If allowed subject to the contingency, the order of allowance shall state the nature of the contingency. If the claim is allowed as absolute before distribution of the estate, it shall be paid in the same manner as absolute claims of the same class. In all other cases the court may provide for the payment of contingent claims in any one of the following methods:

859.21(1) (1) The creditor and personal representative may determine, by agreement, arbitration or compromise, the value thereof, according to its probable present worth, and it may be allowed and paid in the same manner as an absolute claim.

859.21(2) (2) The court may order the personal representative to make distribution of the estate but to retain sufficient funds to pay the claim if and when the same becomes absolute; but for this purpose the estate shall not be kept open longer than 2 years after distribution of the remainder of the estate has been made; and if the claim has not become absolute within that time, distribution shall be made to the distributees of the retained funds, after paying any costs and expenses accruing during such period but the distributees shall be liable to the creditor to the extent provided in s. 859.23, if the contingent claim thereafter becomes absolute. When distribution is so made to distributees, the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.

859.21(3) (3) The court may order distribution of the estate as though the contingent claim did not exist, but the distributees shall be liable to the creditor as limited by s. 859.23, if the contingent claim thereafter becomes absolute; and the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.

859.21(4) (4) Such other method as the court orders.

859.21 History History: 1989 a. 96; 1993 a. 486.

859.23 859.23 Payment of contingent claims by distributees. If a contingent claim is filed and allowed against an estate subject to the contingency and all the assets of the estate including the fund set apart for the payment thereof has been distributed, and the claim thereafter is allowed as absolute, the creditor may recover thereon against those distributees, or the persons who furnish bond for the distributees, whose distributive shares have been increased by reason of the fact that the amount of the claim as finally determined was not paid prior to final distribution, if a proceeding therefor is commenced in court within 6 months after the claim is allowed as absolute. A distributee or the person who furnishes bond for the distributee shall not be liable for an amount exceeding his or her proportionate share of the estate subject to the claim, nor for an amount greater than the value of the property which he or she received from the estate, the value to be determined as of the time of distribution to the distributee.

859.23 History History: 1977 c. 449.

859.25 859.25 Priority of payment of claims and allowances.

859.25(1) (1) Classes and priority. At the time of their allowance, all claims and allowances shall be classified in one of the following classes. If the applicable assets of the estate are insufficient to pay all claims and allowances in full, the personal representative shall make payment in the following order:

859.25(1)(a) (a) Costs and expenses of administration.

859.25(1)(b) (b) Reasonable funeral and burial expenses.

859.25(1)(c) (c) Provisions for the family of the decedent under ss. 861.31, 861.33 and 861.35.

859.25(1)(d) (d) Reasonable and necessary expenses of the last sickness of the decedent, including compensation of persons attending the decedent.

859.25(1)(e) (e) All debts, charges or taxes owing to the United States, this state or a governmental subdivision or municipality of this state.

859.25(1)(f) (f) Wages, including pension, welfare and vacation benefits, due to employees which have been earned within 3 months before the date of the death of the decedent, not to exceed $300 in value to each employee.

859.25(1)(g) (g) Property assigned to the surviving spouse or surviving domestic partner under s. 861.41.

859.25(1)(h) (h) All other claims allowed.

859.25(2) (2) No preference within classes. Preference shall not be given in the payment of any claim over any other claim of the same class, nor shall a claim due and payable be entitled to a preference over claims not due.

859.25 History History: 1971 c. 63; 1983 a. 186; 1985 a. 37; 1993 a. 486; 2009 a. 28.

859.25 Note NOTE: See notes in 1985 Wis. Act 37, marital property trailer bill.

859.27 859.27 Execution and levies prohibited. Garnishment, attachment or execution shall not issue against nor shall any levy be made against any property of the estate under any judgment or cause of action against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, liens or other security agreements upon real or personal property in an appropriate proceeding.

859.29 859.29 Persons interested may be informed of claims. After the deadline for filing a claim against the estate under s. 859.01, any person interested in the estate may make a written request to the personal representative or special administrator for a statement listing all claims that have been filed against the estate. The statement shall show each claim, the name of the claimant, a brief description of the basis of the claim and the amount claimed. Within 5 days after receipt of the request, the personal representative shall mail or deliver a copy of the statement to the requester, including any guardian of the estate, guardian ad litem or attorney, or attorney-in-fact, for a person in the military service. Failure of the personal representative or special administrator to comply with this section does not affect the jurisdiction of the court as to persons interested.

859.29 History History: 1989 a. 96; 1991 a. 220.

859.31 859.31 Compromise of claims. When a claim against the estate has been filed or suit thereon is pending, the creditor and personal representative may, if it appears for the best interests of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated; but if an objection to the claim has been filed by a person interested no compromise of the claim may be made without the consent of the objector.

859.33 859.33 Contest of claims; procedure.

859.33(1) (1) How contest initiated. The following persons may contest a claim or assert an offset or counterclaim in court: the personal representative, a guardian ad litem or a person interested who has the approval of the court. They may do so only by mailing a copy of the objection, offset or counterclaim to the claimant or personally serving the same upon the claimant and filing the same with the court. The objection, offset or counterclaim may be served at any time prior to entry of judgment on the claim, but if a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection, offset or counterclaim shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate. The personal representative shall not be obligated to assert any offset or counterclaim in court and may, if he or she deems it to be in the best interests of the estate, assert the offset or counterclaim in any separate action otherwise authorized by law outside the court proceedings. Any offset or counterclaim so asserted shall be deemed denied by the original claimant.

859.33(2) (2) Procedure. If any claim, offset or counterclaim is contested, the court may require the issues to be made definite, fix a date for pretrial conference and direct the manner in which pleadings, if any, shall be exchanged. The court shall set a time for trial upon its own motion or upon motion of any party.

859.33 History History: 1973 c. 233; 1977 c. 449; 1983 a. 186; 1985 a. 37; 1989 a. 96.

859.33 Note NOTE: See notes in 1985 Wis. Act 37, marital property trailer bill.

859.33 Annotation The 3-day extension under s. 801.15 (5) (a) for responding to papers served by mail is applicable to objections to claims under sub. (1). Flejter v. Estate of Flejter, 2001 WI App 26, 240 Wis. 2d 401, 623 N.W.2d 552, 99-2863.

859.35 859.35 Prompt judgment; hearing if claim filed over one year. The hearing on any claim, offset or counterclaim may be adjourned from time to time, but the hearing shall be concluded as soon as practicable. The court may on its own motion after notice to the claimant, the objector and the personal representative, set for hearing any contested claim, offset or counterclaim, filed over one year. The court may disallow all or any part of the claim, offset or counterclaim for nonprosecution.

859.37 859.37 Judgment on claims. Before setting a time for hearing on the final account the court shall enter a judgment on the claims presented against the decedent and the offsets and counterclaims asserted and stating how much was allowed for or against the estate in each case. The judgment shall set a date by which payment shall be made. If the balance as to any claimant is in favor of the estate, the payment thereof may be enforced as with any other judgment.

859.39 859.39 Delay of payment of claims when funds are insufficient. If it appears at any time that an estate is or may be insolvent, that there are insufficient funds on hand for payment of claims in full or that there is other good cause for delaying payment, the personal representative may report that fact to the court and apply for any order that the personal representative deems necessary.

859.39 History History: 1993 a. 486.

859.39 Cross-reference Cross-reference: See s. 859.25 which establishes priority of payment of claims and allowances.

859.40 859.40 Creditor’s action for property not inventoried. Whenever there is reason to believe that the estate of a decedent as set forth in the inventory may be insufficient to pay the decedent’s debts, a creditor whose claim has been allowed may, on behalf of all, bring an action to reach and subject to sale any property not included in the inventory, which is liable for the payment of debts. The creditor’s action shall not be brought to trial until the insufficiency of the estate in the hands of the personal representative is ascertained; if found likely that the assets may be insufficient, the action shall be brought to trial. If the action is tried, any property which ought to be subjected to the payment of the debts of the decedent shall be sold in the action and the net proceeds used to pay such debts and to reimburse the creditor for the reasonable expenses and attorney fees incurred by the creditor in the action as approved by the court.

859.40 History History: 1993 a. 486; 1997 a. 188.

859.41 859.41 Creditor’s action for property fraudulently sold by decedent. Whenever there is reason to believe that the estate of a decedent as set forth in the inventory may be insufficient to pay the decedent’s debts, and the decedent conveyed any property with intent to defraud the decedent’s creditors or to avoid any duty, or executed conveyances void as against creditors, any creditor whose claim has been allowed may, on behalf of all, bring an action to reach any property and subject it to sale. The creditor’s action shall not be brought to trial until the insufficiency of the estate in the hands of the personal representative is ascertained; if found likely that the assets may be insufficient, the action shall be brought to trial. If the action is tried any property which ought to be subjected to the payment of the debts of the decedent shall be sold in the action and the net proceeds used to pay such debts and to reimburse the creditor for the reasonable expenses and attorney fees incurred by the creditor in such action as approved by the court.

859.41 History History: 1993 a. 486; 1997 a. 188.

859.43 859.43 Encumbered assets; payment of debt.

859.43(1) (1) Rights of secured creditors not affected. Nothing in this chapter shall affect or prevent any action or proceeding to enforce any mortgage, pledge, lien or other security agreement against property of the estate.

859.43(2) (2) Payment. When any property in the estate is encumbered by mortgage, pledge, lien or other security agreement, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or may convey or transfer the encumbered assets to the creditor in satisfaction of the creditor’s lien, in whole or in part, whether or not the holder of the encumbrance has filed a claim.

859.43 History History: 1993 a. 486.

859.43 Cross-reference Cross-reference: See s. 863.13, which deals with exoneration of encumbered property.

859.43 Cross-reference Cross-reference: See s. 859.19, which deals with the payment of secured claims which have been filed.

859.45 859.45 Tort claims.

859.45(1) (1) Filed within time limited. If a claim based on a cause of action in tort or for contribution resulting from a cause of action in tort is filed on or before the deadline for filing a claim under s. 859.01 or 859.21 or a continuance is secured under s. 859.03, the claimant will receive the same protection in regard to payment as a claimant who has filed a claim which was required to be filed.

859.45(2) (2) Not filed within time limited. A cause of action against a decedent in tort or for contribution resulting from a cause of action in tort is not defeated by failure to file the claim or commence or continue an action against the personal representative on or before the deadline for filing a claim under s. 859.01 against an estate, but the failure relieves the court of all responsibility to protect the rights of the claimant and the claimant shall not be granted any of the protections under s. 859.21. If the claim is made absolute through court approved settlement or adjudication and a certified copy of the settlement or judgment is filed in the court in which the estate is being administered prior to the approval of the final account, it shall be paid prior to the distribution of the estate, otherwise the estate may be distributed as though the claim did not exist. After the final account has been approved, a claimant whose claim has been made absolute through court approved settlement or through adjudication may proceed against the distributees, but no distributee may be liable for an amount greater than that allowed under s. 859.23.

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

859.45 Cross-reference Cross-reference: Chapter 877 deals with actions against distributees.

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

859.47 859.47 Payment of unfiled claims. If a personal representative has in good faith paid unfiled claims against the estate, the payments may be allowed upon proof that they were just demands against the estate and that they were paid on or before the deadline for filing claims under s. 859.01, or at any time with the consent of the heirs or beneficiaries affected by the payment. Notice that application will be made for such allowance shall be given under s. 879.03. Payment shall be allowed on a proportional basis with other claims of the same class if the estate is insolvent.

859.47 History History: 1975 c. 331; 1979 c. 110 s. 60 (11); 1989 a. 96.

859.48 859.48 Claims of creditors without notice.

859.48(1) (1) A claim not barred by s. 859.02 (1) because of the operation of s. 859.02 (2) (b) may be enforced only as provided in this section.

859.48(2) (2) The claimant shall file the claim in the court in which the estate is administered within one year after the decedent’s death and within 30 days after the earlier of the following:

859.48(2)(a) (a) The date that the personal representative gives notice to the potential claimant of the deadline for filing a claim against the estate under s. 859.01 or this section and of the court in which the estate is administered.

859.48(2)(b) (b) The date that the claimant first acquires actual knowledge that the estate is being or was administered and of the court in which the estate is administered.

859.48(3) (3) The claimant shall serve a copy of the claim upon or mail a copy of the claim to the personal representative or the attorney for the estate within 10 days after the claim is filed.

859.48(4) (4) In any proceeding under this section, the claimant shall have the burden of establishing by the greater weight of the credible evidence that all of the circumstances under s. 859.02 (2) (b) existed.

859.48(5) (5) If the claim is allowed, it shall be paid to the same extent as other claims of the same class. If allowed after the assets of the estate have been partially or fully distributed, any unpaid portion of the claim may be enforced by separate action against the distributees. No distributee is liable for any amount greater than that allowed under s. 859.23.

859.48(6) (6) This section does not extend the time for commencement of a claim beyond the time provided by any statute of limitations applicable to that claim.

859.48 History History: 1989 a. 96.

859.49 859.49 Last illness and funeral expense of deceased spouse. The reasonable expense of the last illness and funeral may, if properly presented, be paid by the personal representative of the estate of a deceased spouse and if so paid shall be allowed as a proper expenditure even though the surviving spouse could have been held liable for the expense.

859.49 History History: 1975 c. 94 s. 91 (3), (13); 1975 c. 199.

859.51 859.51 No impediment to summary settlement. Nothing in this chapter shall impede the summary procedure provided by ss. 867.01 and 867.02 for closing small estates.