Chapter 867

CHAPTER 867

PROBATE — SUMMARY PROCEDURES

867.01   Summary settlement of small estates.

867.02   Summary assignment of small estates subject to claims of creditors.

867.03   Transfer by affidavit.

867.04   Termination of joint tenancy and life estate.

867.045   Administrative joint tenancy or life estate termination for certain property.

867.046   Summary confirmation of interest in property.

867.05   Determination of descent of property.

867.07   Grounds for appointment of special administrator.

867.09   Who may petition for appointment of special administrator.

867.11   Notice of hearing on petition for appointment of special administrator.

867.13   Bond of special administrator.

867.15   Letters of special administration; no appeal.

867.17   Powers, duties and liabilities of special administrator.

867.19   Compensation of special administrator.

867.21   Termination of authority and discharge of special administrator.

Ch. 867 Cross-reference Cross-reference: See definitions in ch. 851.

867.01 867.01 Summary settlement of small estates.

867.01(1) (1) Availability. The court shall summarily settle the estate of a deceased person without the appointment of a personal representative:

867.01(1)(a) (a) Whenever the estate, less the amount of the debts for which any property in the estate is security, does not exceed in value the costs, expenses, allowances and claims under s. 859.25 (1) (a) to (g).

867.01(1)(b) (b) Whenever the estate, less the amount of the debts for which any property in the estate is security, does not exceed $50,000 in value and the decedent is survived by a spouse or domestic partner, or one or more minor children or both.

867.01(2) (2) When commenced under other procedure. An estate, administration of which has been commenced under ch. 856, may be terminated under this section at any time that it is found to meet the requirements of this section.

867.01(3) (3) Procedure.

867.01(3)(ac) (ac) Who may petition. A person who has standing to petition for administration of the estate under s. 856.07 has standing to petition for summary settlement.

867.01(3)(am) (am) Petition contents. The petition shall contain the following information:

867.01(3)(am)1. 1. The facts required by sub. (1).

867.01(3)(am)2. 2. A detailed statement of all property subject to administration, including any encumbrance, lien, or other charge upon each item.

867.01(3)(am)3. 3. The names and post-office addresses of all persons interested, so far as known to the petitioner or ascertainable by the petitioner with reasonable diligence. The petition shall indicate those who are minors or otherwise under disability and the names and post-office addresses of their guardians.

867.01(3)(am)4. 4. Whether 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.

867.01(3)(b) (b) Special administrator may be appointed. If the court deems it necessary, it may at any time during the proceeding appoint a special administrator to aid in the settlement.

867.01(3)(c) (c) Bond. Before making any order, the court may require a bond of the petitioner in an amount the court deems sufficient, conditioned to indemnify any person who may be aggrieved thereby.

867.01(3)(d) (d) Notice. The court may hear the matter without notice or order notice to be given under s. 879.03. If 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, the petitioner shall give notice by certified mail to the department of health services as soon as practicable after filing the petition with the court.

867.01(3)(f) (f) Order. If the court is satisfied that the estate may be settled under this section, after 30 days have elapsed since notice to the department of health services under par. (d), if that notice is required, the court shall assign the property to the persons entitled to it. If the estate may be settled under sub. (1) (b), any property not otherwise assigned shall be assigned to the surviving spouse or surviving domestic partner, or minor children or both as an allowance under s. 861.31. The court shall order any person indebted to or holding money or other property of the decedent to pay the indebtedness or deliver the property to the persons found to be entitled to receive it. The court shall order the transfer of interests in real estate, stocks or bonds registered in the name of the decedent, the title of a licensed motor vehicle, or any other form of property. If the decedent immediately prior to death had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination in accordance with s. 867.04 has not been issued, the order shall set forth the termination of that life estate or the right of survivorship of any joint tenant. Every tract of real property in which an interest is assigned or terminated or which is security for a debt in which an interest is assigned or terminated shall be specifically described.

867.01(3)(g) (g) Information to unsatisfied creditors. The court may order the petitioner to inform known unsatisfied creditors as to the final disposition of the estate.

867.01(3)(h) (h) Recording required. Whenever the order relates to an interest in real property or to a debt which is secured by an interest in real property, a certified copy or duplicate original of such order shall be recorded by the petitioner in the office of the register of deeds in each county in this state in which such real property is located.

867.01(4) (4) Release of liability of transferor. Upon the payment, delivery, transfer or issuance in accordance with the order of the court, the persons making such delivery, transfer or issuance are released to the same extent as if the same had been made to a personal representative of the estate of the decedent.

867.01(5) (5) Proceeding with or without attorney. Any party to a proceeding under this section may commence or appear at such proceeding in his or her own behalf, by an attorney or, if in the military service, by an attorney-in-fact, but not otherwise.

867.01 History History: 1971 c. 40 s. 93; 1973 c. 42, 90; 1975 c. 331, 421; 1977 c. 449; 1985 a. 278; 1987 a. 27; 1989 a. 234; 1991 a. 220; 1993 a. 16, 437, 486; 1995 a. 27 ss. 7193b to 7194c, 9126 (19); 1999 a. 9, 94; 2005 a. 216; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28; 2013 a. 20; 2015 a. 55; 2019 a. 9.

867.01 Cross-reference Cross-reference: See ch. 705 concerning multiple-party and agency accounts.

867.01 Cross-reference Cross-reference: See s. 856.01 for jurisdiction for administration of estates.

867.01 Cross-reference Cross-reference: See s. 54.66 (4), which provides for summary closing by guardian of small estate of ward.

867.01 Cross-reference Cross-reference: See s. 103.165 (3) for payment of decedent’s employee’s cash bond by employer directly to decedent’s dependents.

867.01 Annotation A “Simple” Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin’s Statutes for Probate Summary Procedures. Johnson. 2008 WLR 612.

867.02 867.02 Summary assignment of small estates subject to claims of creditors.

867.02(1) (1) Availability. The court shall summarily assign the estate of a deceased person without the appointment of a personal representative if the estate, less the amount of the debts for which any property in the estate is security, does not exceed $50,000 in value and the estate cannot be summarily settled under s. 867.01. An estate, administration of which has been commenced under ch. 856, or a summary settlement commenced under s. 867.01 may be terminated under this section at any time that it is found to meet the requirements of this section.

867.02(2) (2) Procedure.

867.02(2)(ac) (ac) Who may petition. Any person who has standing to petition for administration of the estate under s. 856.07 has standing to petition for summary assignment.

867.02(2)(am) (am) Petition contents. The petition shall contain the following information, except that the petitioner may omit from the petition the information in subds. 3. and 4. and include it in an affidavit filed with the court prior to the signing of the order assigning the estate:

867.02(2)(am)1. 1. A statement that the estate does not exceed $50,000 in value and cannot be summarily settled under s. 867.01.

867.02(2)(am)2. 2. A statement as to whether, after the exercise of reasonable diligence, the petitioner has been able to locate the will of the decedent.

867.02(2)(am)3. 3. A detailed statement of all property subject to administration, including any encumbrance, lien, or other charge upon each item.

867.02(2)(am)4. 4. The names and post-office addresses of all creditors of the decedent or the decedent’s estate of whom the petitioner has knowledge and the amount claimed by each.

867.02(2)(am)5. 5. The names and post-office addresses of all persons interested, so far as known to petitioner or ascertainable by the petitioner with reasonable diligence. The petition shall indicate those who are minors or otherwise under disability and the names and post-office addresses of their guardians.

867.02(2)(am)6. 6. Whether 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.

867.02(2)(b) (b) Will. The will of the decedent shall be filed with the petition.

867.02(2)(c) (c) Bond. Before making any order, the court may require a bond of the petitioner in an amount the court deems sufficient, conditioned to indemnify any person who may be aggrieved by the order. Before assigning property, the court may require assignees to give bond for the satisfaction of their liability to creditors or persons interested in the estate.

867.02(2)(d) (d) Notice. The court may hear the matter, including the proof of the will, without notice to interested persons or order notice to be given under s. 879.03. As soon as practicable after filing the petition with the court, the petitioner shall give notice by certified mail to the department of health services. After the filing of the petition with the court, the petitioner shall publish notice to creditors as a class 1 notice, under ch. 985, in a newspaper published in the county.

867.02(2)(f) (f) Special administrator may be appointed. If the court deems it necessary, it may at any time during the proceeding appoint a special administrator to aid in the proceeding.

867.02(2)(g) (g) Order. If the court is satisfied that the estate may be settled by this section, after filing of the petition and proof of the will and after 30 days have elapsed since publication under par. (d), it shall decide all claims and assign the property to the creditors and persons interested who are entitled to it. The assignment shall be subject to the unknown rights of creditors or persons interested in the estate as limited in sub. (4). The court shall order any person indebted to or holding money or other property of the decedent to pay the indebtedness or deliver the property to the persons found to be entitled to receive it. It shall order the transfer of interests in real estate, stocks or bonds registered in the name of the decedent, the title of a licensed motor vehicle or any other form of property. If the decedent immediately prior to death had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination under s. 867.04 has not been issued, the order shall set forth the termination of the life estate or the right of survivorship of any joint tenant. Every tract of real property in which an interest is assigned or terminated or which is security for a debt in which an interest is assigned or terminated shall be specifically described.

867.02(2)(h) (h) Recording required. Whenever the order relates to an interest in real property or to a debt which is secured by an interest in real property, a certified copy or duplicate original of the order shall be recorded by the petitioner in the office of the register of deeds in each county in this state in which the real property is located.

867.02(2)(i) (i) Mailing or delivery required. The petitioner shall mail or deliver a copy of the order to all persons interested in the estate whose post-office address is known to the petitioner or can with reasonable diligence be ascertained.

867.02(3) (3) Release of liability of transferor. Upon the payment, delivery, transfer or issuance in accordance with the order of the court, the persons making the payment, delivery, transfer or issuance are released to the same extent as if the same had been made to a personal representative of the estate of the decedent.

867.02(4) (4) Rights of creditors and persons interested; statutes of limitation. Creditors and persons interested in the estate who were not assigned the property to which they were entitled from the estate may recover against those assignees, or their respective bondsmen whose assigned shares have been increased by reason of the fact that the creditor or person interested was not assigned the share of the estate to which the creditor or person interested was entitled. No assignee or assignee’s bondsman shall be liable for an amount greater than the value of the property which was assigned to the assignee from the estate, the value to be determined as of the time of the assignment. No action for the recovery of any property assigned in the proceeding or for the value of such property shall be brought by any creditor more than 3 months after the publication. No action for the recovery of any property assigned in the proceeding or for the value of such property may be brought by any person interested more than 3 months after a copy of the order assigning the estate was mailed or delivered to the person, or if the person’s name or post-office address could not have been ascertained by the exercise of reasonable diligence on the part of the petitioner, then more than 3 months after a copy of the order assigning the estate was mailed or delivered to any person interested.

867.02(5) (5) Proceeding with or without attorney. Any party to a proceeding under this section may commence or appear at such proceeding in his or her own behalf, by an attorney or, if in the military service, by an attorney-in-fact, but not otherwise.

867.02 History History: 1971 c. 40 s. 93; 1973 c. 90, 243; 1975 c. 331, 421; 1977 c. 449; 1985 a. 278; 1987 a. 27 ss. 2160w, 2170d, 3200 (47); 1989 a. 234; 1991 a. 220; 1993 a. 16, 437, 486; 1995 a. 27 ss. 7195b to 7196, 9126 (19); 1999 a. 9, 94; 2005 a. 216; 2007 a. 20 s. 9121 (6) (a); 2013 a. 20; 2015 a. 55; 2019 a. 9.

867.02 Annotation The three-month limitation under sub. (4) does not bar reconsideration of a summary assignment if there was constructive fraud in its procurement. In re Estate of Boots, 73 Wis. 2d 207, 243 N.W.2d 225 (1976).

867.02 Annotation A “Simple” Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin’s Statutes for Probate Summary Procedures. Johnson. 2008 WLR 575.

867.03 867.03 Transfer by affidavit.

867.03(1c) (1c) Definition. In this section, “guardian” has the meaning given in s. 54.01 (10) or s. 880.01 (3), 2003 stats.

867.03(1g) (1g) Generally. Except as provided in sub. (1h) and subject to subs. (1j) and (1p), when a decedent leaves property subject to administration in this state that does not exceed $50,000 in gross value, any heir of the decedent, trustee of a revocable trust created by the decedent, a person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death may collect any money due the decedent, receive the property of the decedent, and have any evidence of interest, obligation to, or right of the decedent transferred to the affiant if the heir, trustee, person named in the will to act as personal representative, or guardian provides to the person owing the money, having custody of the property, or acting as registrar or transfer agent of the evidences of interest, obligation to, or right proof of prior mailed notice under sub. (1m) if applicable and an affidavit showing all of the following:

867.03(1g)(a) (a) A description of and the value of the property to be transferred.

867.03(1g)(b) (b) The total value of the decedent’s property subject to administration in this state at the date of decedent’s death.

867.03(1g)(c) (c) Whether the decedent or the decedent’s spouse ever 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 s. 49.785.

867.03(1h) (1h) Exception for real property. A person named in the will as personal representative may not receive any real property of the decedent by providing an affidavit under sub. (1g) or have any evidence of interest, obligation to, or right of the decedent in any real property of the decedent transferred to the person named in the will as personal representative by providing an affidavit under sub. (1g). This subsection does not apply to a person named in the will to act as personal representative if the person is also an heir of the decedent, a trustee of a revocable trust created by the decedent, or a person who was guardian of the decedent at the time of the decedent’s death.

867.03(1j) (1j) Transfers to a person named to act as personal representative.

867.03(1j)(a) (a) Subject to par. (b), a person who receives an affidavit under sub. (1g) from a person named in the will to act as personal representative may not transfer any money due the decedent, the property of the decedent, or any evidence of interest, obligation to, or right of the decedent to the affiant until 30 days after the day on which the affidavit is received. This paragraph does not apply to an affidavit under sub. (1g) received from a person named in the will to act as personal representative if the person is also an heir of the decedent, a trustee of a revocable trust created by the decedent, or a person who was guardian of the decedent at the time of the decedent’s death.

867.03(1j)(b) (b) If, during the 30-day period under par. (a), the person who received the affidavit under par. (a) receives an affidavit under sub. (1g) for the same decedent from another person, the person who received the affidavits may not transfer any money due the decedent, the property of the decedent, or any evidence of interest, obligation to, or right of the decedent under this section unless ordered to do so by a court.

867.03(1j)(c) (c) Subsection (2) does not apply to a transfer if the transferor did not comply with this subsection.

867.03(1m) (1m) Notice of affidavit.

867.03(1m)(a) (a) Whenever an heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death intends to transfer a decedent’s property by affidavit under sub. (1g) and the decedent or the decedent’s spouse ever 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, the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death shall give notice to the department of health services of his or her intent. The notice shall include the information in the affidavit under sub. (1g) and the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death shall give the notice by certified mail, return receipt requested.