Chapter 859

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.