Chapter 786

786.31   Future estates, approval of conveyance.

786.32   Future estates, approved conveyance vests title.

786.33   Proceeds deemed real estate.

786.34   Future estates, proceeds placed in trust.

786.35   Future estates, disposal, proceeding in rem.

786.36   Changing names, court procedure.

786.37   Change of name, notice of petition.

786.50   Limitation of action to recover estate sold.

786.52   When sale not avoided.

786.54   Liability for neglect.

786.56   When sale valid.

786.58   Liability for fraud.

786.01 786.01 Conveyance of lands held in trust by persons under disability. Whenever any minor or individual adjudicated incompetent is seized or possessed of any lands or interest in any lands by way of mortgage or in trust only for others, the circuit court of the proper county may, upon the petition of the guardian of the minor or individual adjudicated incompetent or of any person in any way interested in the real estate, make an order authorizing or compelling the minor or individual adjudicated incompetent to convey and assure the lands or interest in the lands to any person entitled thereto, in such manner as the court directs.

786.01 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.01; 2005 a. 387.

786.02 786.02 Specific performance of contract of individual adjudicated incompetent. A circuit court may authorize or compel the specific performance of any contract made by any individual who is adjudicated incompetent before performance of the contract, on the complaint or petition of the guardian of the individual adjudicated incompetent or of any other person interested in the contract.

786.02 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.02; 2005 a. 387.

786.03 786.03 Specific performance; order; appeal. No order authorizing or directing any such conveyance or the performance of any such contract shall be made until after hearing the parties and being satisfied that such conveyance ought to be made or such contract ought to be performed. The court may, by such order, direct the guardian of such individual adjudicated incompetent, or a special guardian appointed in such proceeding, to do any act which is necessary to carry such order into effect. The court may further direct that the reasonable expenses of the proceedings be paid out of the proceeds of the sale. No appeal shall lie from such order unless notice of intention to appeal shall be filed with the court within 10 days after date of the order. The court may enforce such order by any proper proceedings.

786.03 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.03; 2005 a. 387.

786.04 786.04 Specific performance; conveyance; warranties. The court may require the guardian to convey the real estate which such individual adjudicated incompetent might or ought to have conveyed if still competent. Where such individual contracted before incompetency to convey real estate by warranty deed, the guardian shall convey by warranty deed subject to any exceptions set forth in the individual’s contract to convey. The guardian shall not be personally liable because of any breach of such warranty, but such warranty deed shall have the same effect for all purposes as if the individual adjudicated incompetent had executed it at such time while competent. This section is applicable where an individual adjudicated incompetent before incompetency made an assignment of a contract to convey real estate but did not deed to the assignee the title to the premises covered by the contract.

786.04 History History: 1979 c. 32 s. 63; 1979 c. 176; Stats. 1979 s. 786.04; 2005 a. 387.

786.05 786.05 Specific performance; recording order; effect. A certified copy of such judgment directing such conveyance, which is recorded in the office of the register of deeds in the county where the lands lie, shall be prima facie evidence of the correctness of the proceedings and of the authority of the guardian to convey. Every such conveyance shall be as effectual in passing the estate as if the individual adjudicated incompetent were then competent and executed the conveyance.

786.05 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.05; 2005 a. 387.

786.06 786.06 Realty of wards; grounds for mortgage, sale, lease. Any real estate, or interest therein belonging to a minor or to an individual adjudicated incompetent may be sold, mortgaged or leased:

786.06(1) (1) When the personal property and the income of the real estate of such minor or individual adjudicated incompetent are together insufficient for the payment of his or her debts or for the maintenance and education of himself or herself and family;

786.06(2) (2) When the interests of such minor or individual adjudicated incompetent require or will be substantially promoted by such disposition on account of such real estate or interest therein being exposed to waste or dilapidation, or being unproductive, or for other peculiar reasons or circumstances.

786.06 History History: 1979 c. 32 s. 63; 1979 c. 176; Stats. 1979 s. 786.06; 2005 a. 387.

786.07 786.07 Realty of wards or individuals adjudicated incompetent; application for sale or encumbrance. The application for the disposition must be made to the circuit court of the county in which the real estate or some part thereof is situated or to the circuit court of the county in which the guardian for the minor or individual adjudicated incompetent has been appointed, by petition of the guardian of the minor or of the individual or by any relative or other person in behalf of either. The petition must be verified and must set forth the facts which would authorize the selling, mortgaging or leasing of the real estate or some part of the real estate for one or more of the reasons set forth in s. 786.06. If the real estate sold or some part of the real estate is situated in a county other than that in which the proceeding is taken, a certified copy of the order confirming the sale containing the name of the purchaser, the selling price and a description of the property sold shall be recorded in the office of the register of deeds of the county in which the real estate or any part of the real estate is situated. When the minor or individual adjudicated incompetent has a guardian and the application is to any court other than the court in which the guardian was appointed, notice of hearing of the application shall be given by mailing a copy of the notice to the judge of the court that appointed the guardian, and also to the guardian, unless he or she is the petitioner, at least 10 days before the date of the hearing.

786.07 History History: 1977 c. 449; 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.07; 2005 a. 387.

786.08 786.08 Realty of wards; guardian; bond; prosecution of breach.

786.08(1) (1) 

786.08(1)(a) (a) When the application is made on behalf of a minor or individual adjudicated incompetent, who has no guardian, the court shall appoint some suitable person special guardian of the minor or individual in the proceeding; the special guardian shall give a bond to the judge of the court, to be filed with the clerk of the circuit court, in such sum, with such sureties, and in such form as the circuit court or judge directs, conditioned for the faithful performance of the trust reposed, for paying over, investing or accounting for all moneys that shall be received by the guardian, according to law and for observance of the directions of the court in relation to the trust.

786.08(1)(b) (b) When the minor shall have a guardian, the guardian may be appointed special guardian in said matter; or, the guardian, as such, may be authorized and empowered to act in and conduct such proceedings in the same manner, and with the same provisions as to an additional guardian’s bond, as is provided in said proceedings for the conduct thereof by the guardian of individuals adjudicated incompetent.

786.08(2) (2) When the application is made on behalf of an individual adjudicated incompetent, the guardian of the individual shall, in the discretion of the court, give a bond to the judge of the court to be filed with the clerk of the circuit court, in such sum, additional to the guardian’s original bond, as the court deems necessary, with such sureties and such conditions for the faithful performance of trust reposed as prescribed by this section.

786.08(3) (3) In case of the breach of the conditions of such bond, it may be prosecuted for the benefit of the party injured without any direction therefor.

786.08 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.08; 2005 a. 387.

786.09 786.09 Inquiry relative to sale or encumbrance. Upon the presentation of such petition and the filing of such bond the court or the presiding judge may proceed in a summary manner to inquire into the merits of such application or make an order referring it to some suitable person as referee to inquire into and report upon the matters contained in such petition, whose duty it shall be to examine into the truth of the representations made, to hear the parties interested in the property or otherwise interested in the application and report thereupon with all convenient speed.

786.09 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.09.

786.10 786.10 Order for lease, mortgage, sale. If, after an examination of the matter by the court or judge to which application is made, without a reference, or on the coming in of the report of the referee, and on examination of the matter, it shall satisfactorily appear that a disposition of any part of the real estate of such minor or individual adjudicated incompetent or any interest therein is necessary and proper, for any of the causes mentioned in s. 786.06 such court or judge shall make an order directing and authorizing the guardian to contract for the leasing, mortgaging, or sale of such real estate or interest therein or of such part thereof as the court or judge shall deem proper in such manner and with such restrictions as shall be deemed expedient.

786.10 History History: 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.10; 2005 a. 387.

786.11 786.11 Contract for lease, mortgage, sale; approval. No lease, mortgage or sale shall be made until an agreement therefor shall have been entered into by such guardian subject to the approval of the proper court or judge. Upon the confirmation of such agreement by such court or judge the guardian must execute a lease, mortgage or deed as directed by the order of confirmation. The guardian, general or special, may expend usual and customary brokers’ fees, as well as necessary expenditures for abstracting, title insurance, survey, revenue stamps and other necessary costs and expenses in connection with the sale, all subject to review and approval by the court.

786.11 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.11.

786.12 786.12 Wards; acquisition or other disposal of real estate. Under this chapter, the court in which a guardian has been appointed for a minor or an individual adjudicated incompetent may, in addition to the provisions of this chapter, make any disposition of the real estate of the ward or authorize the purchase in the name of the ward of any real estate in this state if the court determines that the proposed disposition or purchase will substantially promote the interests of the ward.

786.12 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.12; 2005 a. 387.

786.13 786.13 Platting realty of wards before sale. Whenever an order shall have been made for the sale of any such real estate and it shall be made to appear to the court or judge that the interest of the minor or other ward would be promoted by platting such real estate the court or judge may, by order, authorize the guardian either alone or together with the cotenants, if any, or other owners, to make and acknowledge a plat of such real estate in the manner prescribed in ch. 236. A plat made pursuant to such order, certified and acknowledged in manner and form prescribed in ch. 236 and approved by the court or presiding judge, shall be as valid and effectual as if made by the minor when of full age or by the individual adjudicated incompetent before the adjudication. After such plat shall have been duly made and recorded such guardians may make separate sales of any lot or lots, according to such plat, or of such ward’s interest therein in the manner above prescribed.

786.13 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.13; 2005 a. 387.

786.14 786.14 Realty of wards; will or conveyance not disregarded. No real estate or interest therein shall be sold, mortgaged or leased under the provisions of this chapter contrary to the provisions of any will by which the same was devised or of any conveyance by which the same was transferred to the minor or individual adjudicated incompetent.

786.14 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.14; 2005 a. 387.

786.15 786.15 Realty of wards, validity of the conveyance. Every deed, mortgage, lease or other conveyance made in good faith by the guardian of a minor or individual adjudicated incompetent, pursuant to any order or judgment of a circuit court, made under the provisions of this chapter, shall be as valid and effectual as if made by the minor when of full age or by the individual adjudicated incompetent before the adjudication.

786.15 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.15; 2005 a. 387.

786.15 Annotation A conveyance of a ward’s real property by a guardian acting pursuant to court order is binding upon the ward beyond the time of the latter’s majority. An option is a “conveyance” within the meaning of this section. Clear View Estates, Inc. v. Veitch, 67 Wis. 2d 372, 227 N.W.2d 84 (1975).

786.16 786.16 Realty of wards; effect of sale; proceeds realty. No sale of the real estate of any minor or individual adjudicated incompetent shall give to the minor or individual any other or greater interest or estate in the proceeds of such sale than the minor or individual had in the estate so sold; but the said proceeds shall be deemed real estate of the same nature as the property sold.

786.16 History History: 1979 c. 32 s. 63; 1979 c. 176; Stats. 1979 s. 786.16; 2005 a. 387.

786.17 786.17 Realty of wards, proceeds, how applied; accounts.

786.17(1) (1) The court shall make an order for the application and disposition of the proceeds of any such sale or mortgage, and of the income derived from the investment thereof and of the rent accruing upon any such lease, and direct the investment of any portion thereof belonging to the minor or individual adjudicated incompetent that is not needed for the payment of debts or the immediate support of the individual and the individual’s family, so as to secure the same for the benefit of the minor or individual, and shall direct a return of the investment to be made on oath as soon as possible, and shall require accounts to be rendered periodically by any guardian or other person who may be entrusted with the disposition of the proceeds or the income thereof.

786.17(2) (2) If a guardian or other person fails or neglects to make a proper return or to render such accounts as the order of the circuit court requires the court may find the guardian or other person in default.

786.17 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.17; 2005 a. 387.

786.18 786.18 Ward’s estate is subject to particular estates.

786.18(1) (1) If the real estate or interest therein of any minor or any individual adjudicated incompetent that is directed to be sold is subject to an estate for life or for years in the whole or any part thereof the order for the sale may, in the discretion of the court or presiding judge, direct that such estate shall be sold, with the reversionary estate or interest of the minor or individual.

786.18(2) (2) After a sale under sub. (1), the court or judge shall ascertain the present value of the estate and direct the payment of the sum in gross, or the investment of the proceeds or the proper portion of the proceeds and the payment of the interest to the person having the particular estate until the expiration of the estate.

786.18 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.18; 1985 a. 29; 2005 a. 387.

786.19 786.19 Ward’s particular estate, disposition. Where the interest of the minor or individual adjudicated incompetent in real estate consists of an estate for life or for years the court or presiding judge may, by order, authorize the guardian to join with the individual holding the reversionary estate in a conveyance of the property to which such interest attaches, so as to fully convey the particular estate, on receiving from the proceeds of the sale a gross sum in satisfaction of such estate or such proceeds or the proper portion thereof to be invested, and the interest thereon paid to the individual having the estate until the termination thereof; in either case the amount to be ascertained as prescribed in s. 786.18. When the proceeds or a proportionate part of such proceeds is received by the guardian for investment, the order of the court or presiding judge must provide for the investment thereof until termination of the particular estate, and then for the payment thereof to the individual entitled thereto.

786.19 History History: 1979 c. 32 ss. 63, 92 (14); 1979 c. 176; Stats. 1979 s. 786.19; 2005 a. 387.

786.20 786.20 Minor, ward of the court. From the time of application on behalf of a minor having no guardian for the disposition of property, the minor shall be considered the ward of the court in which the application is made, so far as it relates to property, its proceeds and income.

786.20 History History: 1979 c. 32 s. 63; 1979 c. 176; Stats. 1979 s. 786.20; 2005 a. 387.

786.21 786.21 Estate of individual adjudicated incompetent, management. The real estate of an individual adjudicated incompetent may not be leased for more than 5 years, or mortgaged or disposed of otherwise than is authorized and directed by this chapter.

786.21 History History: 1979 c. 32 s. 63; Stats. 1979 s. 786.21; 1997 a. 254; 2005 a. 387.

786.25 786.25 Nonresident wards, foreign guardian to convey estate; special guardian.

786.25(1) (1) If a minor or individual adjudicated incompetent residing outside this state owns any right, title, or interest in or to any real estate in this state and has a guardian or conservator who has been appointed in the state, territory, district, or country where he or she resides and no guardian appointed in this state, the foreign guardian or conservator may file a copy of the appointment, authenticated so as to make the same receivable in evidence, in the circuit court for the county in which the real estate of the minor or individual adjudicated incompetent is situated.

786.25(2) (2) Upon filing of the appointment under sub. (1) and proper application, the foreign guardian or conservator may be licensed by the court or presiding judge to lease, mortgage, or sell the real estate of his or her ward in the county under sub. (1), or any portion thereof, or interest therein, in the same manner and upon the same terms and conditions and for the same purposes as prescribed in this chapter in the case of a guardian appointed in this state. The court, or the presiding judge thereof, may, upon the petition of such foreign guardian or conservator, appoint some suitable person residing in this state, special guardian of the minor or individual adjudicated incompetent to make the lease, mortgage, or sale in the manner provided by this chapter.

786.25(3) (3) In case a special guardian shall be appointed the moneys arising from such lease, mortgage or sale shall be paid out and disposed of or invested as may be directed by the court or judge appointing such special guardian. The duly authenticated copy of the appointment of any guardian or conservator appointed in any other state, district, territory, or country together with a duly authenticated copy of the appointment of the special guardian of such minor or individual adjudicated incompetent, shall also be properly recorded and tract indexed at the ward’s expense in the office of the register of deeds of the county in which such real estate is situated.

786.25 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.25; 1993 a. 486; 2005 a. 387.

786.26 786.26 Future estates may be sold. Any real estate or interest therein which may at any time in the future be owned or possessed by any after-born child or by any person, whether in being or not, known or unknown, who shall or may become interested therein under and by virtue of any deed or other instrument, or by any last will and testament, may be sold, mortgaged, leased or otherwise disposed of as provided in ss. 786.26 to 786.35.

786.26 History History: 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.26.

786.27 786.27 Future estates, application for sale. The application for the disposition may be made to the circuit court for the county in which the real estate or some part or interest therein is situated, by the verified petition of any one or more of the parties having any title to or interest in the land. If any petitioners are minors, the petition shall be signed by their general guardian. The petition must set forth facts which would authorize the selling, mortgaging, leasing or otherwise disposing of the real estate or some part thereof, or interest therein, for one or more of the reasons set forth in s. 786.06. The lands or interests therein shall be sold, mortgaged, leased or otherwise disposed of in such manner as will best promote the interests of those concerned, whether in being or not, and whether their interests are present or contingent. Notice of the application shall be given to all parties having any title to or interest in the lands, who are living at the time of the petition, except those who have joined in the petition at least 10 days prior to the date of the hearing of the application, by service of the same as provided in ch. 801 for the service of the summons in a civil action.

786.27 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 449; 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.27.

786.28 786.28 Future estates, sale, referee bond. Upon the application being made, the circuit court must appoint some suitable person as referee, under whose direction the sale, mortgaging, leasing or other disposition of the lands or interest shall be made, which referee shall give a bond to the court in such amount, with such sureties and in such form as the court directs, conditioned as provided in s. 786.08. All proceedings had prior to June 7, 1913, under this chapter in county courts not having civil jurisdiction are hereby legalized.

786.28 History History: 1977 c. 449; 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.28.

786.29 786.29 Future estates, sale, examination and report. Upon the filing of the bond, the circuit court may proceed in a summary manner to inquire into the merits of the application, or make an order directing the referee to inquire into and report upon the matters contained in the petition, and he or she shall examine the representations made, hear the parties interested in the property or otherwise interested in the application, and report thereupon with all convenient speed.

786.29 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.29.

786.30 786.30 Future estates, order for disposition. If, after the summary examination or on the coming in of the report of the referee, and on examination of the matter it shall satisfactorily appear that a sale, mortgage, lease or other disposition of the whole or any part of the real estate or interest therein is necessary or proper, the circuit court shall make an order directing the sale, mortgaging, leasing or other disposition of the real estate or interest therein or of such part thereof as the court deems proper to be made by the referee, in such manner and with such restrictions as deemed expedient.

786.30 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.30.

786.31 786.31 Future estates, approval of conveyance. No such sale, mortgage, lease or other disposition of the property may be made until an agreement therefor is entered into by the referee, subject to the approval of the circuit court. Upon the confirmation of such agreement by the court, the referee must execute a deed, mortgage, lease or other instrument of conveyance as directed by the said order of confirmation.

786.31 History History: 1977 c. 449; 1979 c. 32 s. 63; Stats. 1979 s. 786.31.

786.32 786.32 Future estates, approved conveyance vests title. Every deed, mortgage, lease or other conveyance made in good faith by the referee pursuant to any order or judgment of the circuit court, made under ss. 786.26 to 786.35, is valid and effectual to vest in the purchaser, mortgagee, lessee or other party under the conveyance, a good and sufficient title as against all persons having, or who may have, any title to or interest or estate in the lands, whether in being or not, under or by virtue of the terms of any deed or other instrument, or under and by virtue of any last will and testament, and the court may require any or all parties who are living having any interest in the lands to join the referee in the execution of the instrument of conveyance and release all their interests therein.

786.32 History History: 1977 c. 449; 1979 c. 32 ss. 63, 92 (14); Stats. 1979 s. 786.32.

786.33 786.33 Proceeds deemed real estate. No sale, mortgage, lease or other conveyance made as aforesaid of the real estate or any interest therein of any person, whether in being or not, shall give to such person any other or greater interest or estate in the proceeds of such sale, mortgaging or other disposition of said lands or interest therein than the person had in the estate so sold or disposed of but the said proceeds shall be deemed real estate of the same nature as the property sold.

786.33 History History: 1979 c. 32 s. 63; 1979 c. 176; Stats. 1979 s. 786.33.

786.34 786.34 Future estates, proceeds placed in trust. The proceeds of the sale, mortgage, lease or other conveyance of the real estate, after payment under the direction of the circuit court of the costs and expenses of the proceedings, shall be paid to some designated trustee, and held, invested and disposed of in such manner and for such time as designated by the court for the benefit of such persons as may be or become interested in the lands or interests under and by virtue of the deed or other instrument or the will and testament, and the proceeds, as well as the interest and income thereof, shall at all times abide the order of the court.