See s. 851.21
which defines “persons interested".
See s. 856.11
, which requires notice to both an interested person and his guardian ad litem or guardian of the estate when giving notice of hearing on petition for administration.
Notice; manner of giving. 879.05(1)(1)
Unless the statute requiring notice in a particular proceeding provides otherwise, notice required in the administration of an estate or other proceeding shall be given either by mail under sub. (2)
or by personal service under sub. (3)
. The first notice given by mail in any administration or other proceeding must be accompanied by notice by publication given under sub. (4)
. Notice by publication in addition to mailed notice is required for subsequent hearings if the name or the post-office address of one or more persons entitled to notice has not been ascertained.
(2) Service by mail.
Service shall be made by first class mail either within or without the state at least 20 days before the hearing or proceeding upon any person whose post-office address is known or can with reasonable diligence be ascertained.
(3) Personal service.
Personal service shall be made at least 10 days before the hearing under s. 801.11
, except as that section provides for service by publication and except that substituted service under s. 801.11 (1) (b)
may not be made outside this state.
(4) Service by publication.
Unless a statute provides otherwise, every court notice required to be given by publication shall be published as a class 3 notice in a newspaper published in the county, eligible under ch. 985
, as the court by order directs.
History: 1973 c. 12
; Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 449
When heirs at law had not been heard from for 30 to 40 years, published notice of hearing on proof of the will was legal notice to the heirs under s. 856.11. In re Estate of Phillips, 92 Wis. 2d 354
, 284 N.W.2d 908
Proof of service of notice. 879.07(1)(1)
Proof of service by mail shall be by the affidavit of the person who mailed the notice showing when and to whom the person mailed it and how it was addressed.
(2) Personal service.
Proof of personal service shall be made under s. 801.10
or by the written admission of service by the person served if competent and an adult, and the subscription of the person's name to the admission is presumptive evidence of its genuineness.
Proof of service by publication shall be by affidavit under s. 985.12
Sup. Ct. Order, 67 Wis. 2d 585, 783 (1979); 1975 c. 218
; 1993 a. 486
Notice requirement satisfied by waiver of notice.
Persons who are not minors or individuals adjudicated incompetent, on behalf of themselves, and appointed guardians ad litem and guardians of the estate on behalf of themselves and those whom they represent, may in writing waive the service of notice upon them and consent to the hearing of any matter without notice. An attorney, or attorney-in-fact, for a person in the military service may waive notice on behalf of himself or herself but cannot waive notice on behalf of the person in the military service. Waiver of notice by any person is equivalent to timely service of notice.
The court's decision not to use the issuing judge's name in the caption of the action in order to prevent prejudice was within the court's discretion. Estate of Burgess v. Peterson, 196 Wis. 2d 55
, 537 N.W.2d 115
(Ct. App. 1995), 94-3043
Notice requirement satisfied by appearance.
An appearance by a person who is not a minor or an individual adjudicated incompetent is equivalent to timely service of notice upon the person. An appearance by a guardian of the estate is equivalent to timely service of notice upon the guardian and upon the guardian's ward. An appearance by a guardian ad litem is equivalent to timely service of notice upon the guardian ad litem and except at a hearing to prove a will or for administration is equivalent to timely service of notice upon those whom the guardian ad litem represents. An appearance by an attorney, or an attorney-in-fact, for a person in the military service is equivalent to timely service of notice upon the attorney or attorney-in-fact but does not satisfy a requirement for notice to the person in the military service.
Delayed service of notice.
If for any reason notice to any person, including a minor or an individual adjudicated incompetent, is insufficient, the court may at any time order service of notice together with documents required under ss. 858.03
and, where required, appoint a guardian ad litem under s. 879.23
and require the person or the person's guardian ad litem to show cause why the person should not be bound by the action already taken in the proceedings as though the person had been timely served with notice. Such person may consent in writing to be bound.
Sup. Ct. Order, 50 Wis. 2d vii (1971); 1993 a. 486
; 2005 a. 387
Comment of Judicial Council, 1971: This amendment makes it clear that these provisions apply to minors and incompetents. The cross-reference change is corrective. [Re Order effective July 1, 1971]
Appearances, how made.
In any proceeding in the court, appearances shall be made as follows:
A minor or individual adjudicated incompetent shall appear by a guardian ad litem or by the guardian of his or her estate, who may appear by attorney, or by another person under the doctrine of virtual representation as provided in s. 879.23 (5)
A personal representative shall appear by attorney; and
Every other person shall appear in person, by attorney or, if in the military service, by an attorney-in-fact.
See s. 879.23
for provision authorizing appointment of surviving parent as guardian ad litem.
Attorney, appearance by.
The attorney who first appears for any party or person interested shall be recognized as the attorney throughout the matter or proceeding unless another attorney is substituted under SCR 11.02
History: 1977 c. 187
; 1977 c. 273
; Sup. Ct. Order, eff. 1-1-80.
An executor who asked for substitution when probate had just been begun because the heirs desired it and to avoid conflict with them had shown sufficient cause for changing attorneys. Estate of Ainsworth, 52 Wis. 2d 152
, 187 N.W.2d 828
, 189 N.W.2d 505
Attorney, notice to.
Except for a person in the military service, as provided in s. 879.09
, if a person interested who is not a minor or an individual adjudicated incompetent has retained an attorney to represent him or her and the attorney has mailed a notice of retainer and request for service to the attorney for the personal representative and filed a copy with the court, any notice that would be given to the person interested shall instead be given to the attorney, and the attorney may waive notice for the person interested under s. 879.09
Appearance for person domiciled in foreign country.
When notice has been given to the attorney general under s. 879.03 (3)
that a person domiciled in a foreign country, not represented by a consul, vice consul or consular agent, is interested in an estate, the attorney general shall appear for the person and be allowed compensation and necessary expenditures in the same manner as a guardian ad litem.
History: 1973 c. 90
; 1993 a. 486
Guardian ad litem. 879.23(1)(1)
A guardian ad litem shall be appointed for any person interested who is a minor or an individual adjudicated incompetent and has no guardian of his or her estate, or where the guardian of the minor's or individual's estate fails to appear on the minor's or individual's behalf or where the interest of the minor or individual is adverse to that of the guardian of the minor's or individual's estate. A guardian ad litem may be appointed for persons not in being or presently unascertainable. A guardian ad litem shall not be appointed or appear in the same matter for different persons whose interests are conflicting.
(2) Time of appointment.
The court may appoint the guardian ad litem at the time of making the order for hearing the matter, and require notice of the appointment and of the hearing to be served upon the guardian ad litem; or the guardian ad litem may be appointed on the day of the hearing and before any proceedings are had.
(3) Duration of appointment.
The guardian ad litem shall continue to act throughout the proceeding in relation to the same estate or matter until proper distribution has been made to or for the benefit of the person the guardian ad litem represents, unless earlier discharged by the court. A guardian ad litem shall be discharged by the court when it appears that the minority or incompetency has terminated or when it appears that the person the guardian ad litem represents no longer has an interest in the estate or matter. If a will creates a trust, a guardian ad litem appointed in the administration of the estate has no responsibility in regard to the administration of the testamentary trust unless reappointed for that purpose.
Except as provided in par. (b)
, the guardian ad litem appointed under this section shall be either an attorney admitted to practice in this state or a parent or child of the minor or individual adjudicated incompetent to be represented by the guardian ad litem. A parent or child of the person to be represented may be appointed the guardian ad litem under this section only if the court finds either that the prospective guardian ad litem is an attorney admitted to practice in this state or is otherwise suitably qualified to perform the functions of the guardian ad litem.
In matters relating to the probate of an estate in which a minor has an interest that is unlikely to exceed $10,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If no parent of the minor is qualified and willing to serve as guardian ad litem, the guardian ad litem shall be an attorney as provided in par. (a)
In matters relating to the probate of an estate in which an individual adjudicated incompetent has an interest that is unlikely to exceed $1,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If the court finds that no surviving parent is qualified and willing to serve, the guardian ad litem shall be an adult child of the individual, unless the court finds that no adult child of the individual is qualified and willing to serve as the guardian ad litem. If the court finds that neither a parent nor an adult child of the individual adjudicated incompetent is qualified and willing to serve as the guardian ad litem, the court shall appoint an attorney as provided in par. (a)
The guardian ad litem may be allowed reasonable compensation and may be allowed reimbursement for necessary disbursements, the amount of which shall be set by the court and paid out of the estate.
(5) Virtual representation.
The court may dispense with or terminate the appointment of a guardian ad litem for an interested person who is a minor, an individual adjudicated incompetent, not in being, or presently unascertainable, if there is a living person, of full legal rights and capacity, who is a party to the proceeding and has a substantially identical interest in it.
See s. 757.48
for general provisions on guardian ad litem.
Factors for determining a reasonable number of hours that a guardian ad litem spent on a case are discussed. The guardian ad litem is entitled to compensation for collecting a fee to the extent that the estate's opposition to the fee was unreasonable. In Matter of Estate of Trotalli, 123 Wis. 2d 340
, 366 N.W.2d 879
Attorney for person in military service.
At the time of filing a petition for administration of an estate, an affidavit shall be filed setting forth facts showing whether any person interested in the matter is actively engaged in the military service of the United States. Whenever it appears by the affidavit or otherwise that any person in the active military service of the United States is interested in an administration and is not represented by an attorney, or by an attorney-in-fact who is duly authorized to act on his or her behalf in the matter, the judge shall appoint an attorney to represent the person and protect his interest, and no further proceedings shall be had until such appointment has been made. The attorney who is appointed for the person in the military service shall be an attorney admitted to practice in this state and shall be allowed compensation and necessary expenditures to be fixed by the court and paid out of the estate.
History: 1973 c. 233
; 1991 a. 220
Waiver of right to certain documents.
Any person who is not a minor or an individual adjudicated incompetent may in writing waive the person's right to be given a statement that the inventory has been filed under s. 858.03
and a copy of accounts under s. 862.11
Appeal is to the court of appeals.
Any person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal or take a writ of error therefrom to the court of appeals.
(2) Effect of chs. 801 to 847.
In all matters not otherwise provided for in this chapter relating to appeals from courts assigned to exercise probate jurisdiction to the court of appeals, the law and rules of practice of chs. 801
(4) Who may appeal on behalf of minor or individual adjudicated incompetent.
In all cases the appeal on behalf of any minor or individual adjudicated incompetent may be taken and prosecuted by the guardian of the minor's or individual's estate or by a guardian ad litem.
(5) Limitation on bond and costs.
On appeals from courts assigned to exercise probate jurisdiction to the court of appeals no bond may be required of, or costs awarded against, any alleged incompetent individual or person acting in behalf of an alleged incompetent individual on an appeal from an adjudication of incompetency, and no bond may be required of any personal representative, guardian, or trustee of a testamentary trust.
Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 187
; 1979 c. 89
; 1983 a. 219
; 1993 a. 486
; 2005 a. 387
Judicial Council Note, 1983: Sub. (3) providing an appeal deadline of 60 days from entry of order or judgment in probate proceedings, has been repealed for greater uniformity. An appeal must be initiated within the time period specified in s. 808.04 (1). [Bill 151-S]
A memorandum decision in a probate proceeding was treated as an order terminating the proceeding and therefore appealable although no separate order was entered when it appeared that the memorandum decision was clearly intended to be a final ruling. Estate of Boerner, 46 Wis. 2d 183
, 174 N.W.2d 457
The agents of an incompetent named in her health care and durable power of attorney documents had standing to appeal under sub. (1). Because they were agents under these two documents, they were substitutes for the incompetent for purposes of sub. (1). Guardianship of Muriel K. 2002 WI 27
, 251 Wis. 2d 10
, 640 N.W.2d 773
Final orders and final judgments in probate cases should state that they are final for the purposes of an appeal, if that is the intention of the parties involved and of the circuit court. Sanders v. Estate of Sanders, 2008 WI 63
, 310 Wis. 2d 175
, 750 N.W.2d 806
Relief from judgment or order.
On motion, notice to adverse parties and hearing, the court may relieve a party or legal representative from a judgment or orders of the court or the party's stipulation as provided in s. 806.07
History: 1983 a. 219
Costs, if allowed; judgment for.
Costs may be allowed in all appealable contested matters in court to the prevailing party, to be paid by the losing party or out of the estate as justice may require; and if costs are allowed they shall be taxed by the register in probate after the notice required in ch. 814
. If costs are allowed, the court shall render judgment therefor, stating in whose favor and against whom rendered and the amount, and a list of the items making the amount shall be filed with the papers in the case. Costs shall not be taxed against a guardian ad litem, except as provided in s. 814.14
Sup. Ct. Order, 50 Wis. 2d vii (1971); Sup. Ct. Order, 67 Wis. 2d 783; 1977 c. 449
Comment of Judicial Council, 1971: Generally, costs shall not be taxed against a guardian ad litem. [Re Order effective July 1, 1971]
Nothing in this section or s. 879.37 suggests a trial is necessary for an award of attorney fees and costs. When a party concedes nothing and an opposing party capitulates before the court to the very best outcome the first party could have achieved if the matter had proceeded to trial, the first party has prevailed. Troy v. Hurkman, 2017 WI App 59
, 378 Wis. 2d 75
, 902 N.W.2d 794
Costs in will contests.
Costs may be awarded out of the estate to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
History: 1993 a. 486
; 2001 a. 102
A finding of undue influence on the part of the unsuccessful proponent disqualifies the proponent from asserting “good faith" under the statute. In re Estate of Christen, 72 Wis. 2d 8
, 239 N.W.2d 528
Attorney fees in contests.
Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
History: 1993 a. 486
; 2001 a. 102
A finding of undue influence on the part of the unsuccessful proponent disqualifies it from asserting “good faith" under this section. In re Estate of Christen, 72 Wis. 2d 8
, 239 N.W.2d 528
An objector is a prevailing party if he or she achieves some significant benefit in litigation involving a claim against the estate. The prevailing party can include multiple interested parties who register objections and defend. The awarding of attorney fees is not limited to when the personal representative fails to act or when the award benefits the estate. The award of attorney fees is discretionary. Estate of Wheeler v. Franco, 2002 WI App 190
, 256 Wis. 2d 757
, 649 N.W.2d 711
This section limits a prevailing party to recovery from the estate only. It does not allow the prevailing party to seek to recover costs and fees from the portion of the estate that is distributed to particular heirs. Bloom v. Grawoig, 2008 WI App 28
, 308 Wis. 2d 349
, 746 N.W.2d 532
There is no prevailing party and no appealable contested matter when a will contest results in settlement. As such, the trial court properly denied a party's claim for attorney fees. Wolf v. Estate of Wolf, 2009 WI App 183
, 322 Wis. 2d 674
, 777 N.W.2d 119
Nothing in s. 879.33 or this section suggests a trial is necessary for an award of attorney fees and costs. When a party concedes nothing and an opposing party capitulates before the court to the very best outcome the first party could have achieved if the matter had proceeded to trial, the first party has prevailed. Troy v. Hurkman, 2017 WI App 59
, 378 Wis. 2d 75
, 902 N.W.2d 794
Security and judgment for costs.
In all cases under s. 879.33
the court may require the claimant or contestant to give a bond in such sum and with such surety as is approved by the court, to the effect that he or she will pay all costs that may be awarded by the court in the proceeding against him or her. A judgment for costs shall be against the claimant or contestant and the surety.
History: 1977 c. 449
Fees in court.
Fees in court shall be allowed:
To appraisers, an amount to be fixed by the court;
To witnesses and interpreters, the fees under s. 814.67
, and to expert witnesses, the fees under s. 814.04 (2)
In cases not provided for, a fair compensation shall be allowed by the court.