Chapter 879

879.23(5) (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.

879.23 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); 1973 c. 233; 1977 c. 299; 1979 c. 110 s. 60 (2); 1993 a. 486; 1995 a. 225; 1997 a. 290; 2005 a. 387.

879.23 Cross-reference Cross-reference: See s. 757.48 for general provisions on guardian ad litem.

879.23 Annotation 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 (1985).

879.25 879.25 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.

879.25 History History: 1973 c. 233; 1991 a. 220.

879.26 879.26 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.

879.26 History History: 1971 c. 211 s. 126; 1993 a. 486; 2005 a. 387.

879.27 879.27 Appeals.

879.27(1) (1) 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.

879.27(2) (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 to 847 govern.

879.27(4) (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.

879.27(5) (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.

879.27 History History: Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 187, 449; 1979 c. 89; 1983 a. 219; 1993 a. 486; 2005 a. 387.

879.27 Note 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]

879.27 Annotation 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 (1970).

879.27 Annotation 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, 00-0929.

879.27 Annotation 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, 06-0424.

879.31 879.31 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.

879.31 History History: 1983 a. 219.

879.33 879.33 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.

879.33 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); Sup. Ct. Order, 67 Wis. 2d 783; 1977 c. 449.

879.33 Note Comment of Judicial Council, 1971: Generally, costs shall not be taxed against a guardian ad litem. [Re Order effective July 1, 1971]

879.33 Annotation 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, 16-0387.

879.35 879.35 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.

879.35 History History: 1993 a. 486; 2001 a. 102.

879.35 Annotation 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 (1976).

879.35 Annotation If the court finds good faith, the court may, but need not, award costs and attorney fees to the unsuccessful proponent of a will. Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132.

879.37 879.37 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.

879.37 History History: 1993 a. 486; 2001 a. 102.

879.37 Annotation 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 (1976).

879.37 Annotation If the court finds good faith, the court may, but need not, award costs and attorney fees to the unsuccessful proponent of a will. Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132.

879.37 Annotation 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, 01-3344.

879.37 Annotation 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, 07-0042.

879.37 Annotation 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, 09-0781.

879.37 Annotation 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, 16-0387.

879.39 879.39 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.

879.39 History History: 1977 c. 449.

879.41 879.41 Fees in court. Fees in court shall be allowed:

879.41(1) (1) To appraisers, an amount to be fixed by the court;

879.41(2) (2) To jurors, the fees under s. 756.25;

879.41(3) (3) To witnesses and interpreters, the fees under s. 814.67, and to expert witnesses, the fees under s. 814.04 (2);

879.41(4) (4) Travel as fixed by the court;

879.41(5) (5) In cases not provided for, a fair compensation shall be allowed by the court.

879.41 History History: Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 187 s. 135; 1977 c. 449; 1981 c. 317 s. 2202.

879.43 879.43 Money judgment in favor of estate.

879.43(1) (1) Enforcement. All money judgments in court in favor of an estate may be enforced through the court, after costs have been taxed under s. 814.10. The pertinent provisions of ch. 815, relating to executions, apply.

879.43(2) (2) Stay of execution. Execution of judgments may be stayed under chs. 801 to 847.

879.43(3) (3) Entry. Judgments may be entered in the judgment and lien docket in the office of the clerk of circuit court, upon the filing of a certified transcript of the judgment.

879.43(4) (4) Lien. A judgment entered in the judgment and lien docket creates a lien upon the real estate of the debtor under s. 806.15.

879.43 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 449; 1979 c. 89; 1995 a. 224.

879.45 879.45 Jury trials, practice.

879.45(1) (1) Generally. Jury trials may be had in court in all cases in which a jury trial may be had of similar issues under s. 805.01 (1).

879.45(2) (2) Demand. In all cases under sub. (1), any person having the right of appeal from the determination of the court may file with the court, within 10 days after notice that the matter is to be contested, a written demand for a jury trial.

879.45(3) (3) Framing issues. Upon filing the demand and receipt, the court may order an issue to be framed by the parties within a fixed time, and the matter shall be placed upon the calendar.

879.45(4) (4) Costs. In all jury cases costs shall be allowed as a matter of course to the prevailing party.

879.45(5) (5) Selection of jurors. Jurors shall be selected under ch. 756 and trials by jury shall be under ch. 805.

879.45(6) (6) Calendar. At the request of the court, the clerk shall prepare, in the order of their date of issue, a list of cases in which a trial by jury has been demanded. The list shall constitute a jury calendar. In case a continuance in any action upon the jury calendar is asked by any party, the court may grant the continuance and require payment of $10 motion fees.

879.45(7) (7) Pretrial conference. The court may hold a pretrial conference under s. 802.10 (5).

879.45 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 418 s. 929 (8m); 1977 c. 447 s. 210; 1977 c. 449; 1979 c. 32; 1981 c. 391; Sup. Ct. Order No. 95-04, 191 Wis. 2d xxi (1995); Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

879.45 Annotation Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Estate of Elvers, 48 Wis. 2d 17, 179 N.W.2d 881 (1970). See also In re Estate of Sharpley, 2002 WI App 201, 257 Wis. 2d. 152, 653 N.W.2d 124, 01-2167.

879.47 879.47 Papers, preparation and filing.

879.47(1) (1) The attorney for any person desiring to file any paper in court is responsible for the preparation of the paper. Except as provided in sub. (2), all papers shall be legibly written on substantial paper and shall state the title of the proceeding in which they are filed and the character of the paper. Either uniform forms or computer-generated forms, if the forms exactly recreate the original forms in wording, format and substance, shall be used. If papers are not so written or if uniform forms or computer-generated forms that exactly recreate the original forms in wording, format and substance are not used, the court may refuse to receive and file them. The court shall show on all papers the date of their filing.

879.47(2) (2) Trustees and cotrustees may submit to courts accounts in the format that they normally use for accounts submitted to beneficiaries under this subsection, if all of the information required by the court is included.

879.47 History History: 1977 c. 449; 1987 a. 220; 1993 a. 130; 2013 a. 92 ss. 199, 342.

879.49 879.49 Papers, withdrawal. No paper filed in any matter may be withdrawn without leave of the court or the judge, and when a paper is withdrawn a copy thereof, attested by the judge or register in probate, shall, if required, be left in its place.

879.51 879.51 Court not to delay in setting matter for hearing. When a petition and proposed order for hearing are filed, the court within 10 days thereafter shall set a time for hearing.

879.53 879.53 Hearings set for a day certain. All matters in court requiring notice of hearing shall be set for hearing on a day certain, and shall be heard on the day set or as soon thereafter as counsel may be heard.

879.53 History History: 1977 c. 449.

879.55 879.55 Correction of clerical errors in court records. Upon verified petition to a court by any person interested or his or her successor in title praying that clerical errors in its records be corrected as specified in the petition, the court shall order a hearing thereon. The hearing shall be held without notice or upon such notice as the court requires. If the court requires notice, it shall be given to those persons interested who will be affected by the change in the records. If on hearing the court finds its record incorrect as a result of clerical error, it shall make its record conform to the truth. The corrected record shall be as valid and binding as though correctly made and entered at the proper time.

879.55 History History: 1977 c. 449.

879.57 879.57 Special administrator; personal representative, guardian. If it is found by the court to be necessary to appoint a personal representative or guardian and there appears to be no person in the state to petition for the appointment or there appears to be no suitable person to be so appointed, the court shall, upon its own motion or upon the petition of any interested party, grant administration of an estate of a decedent or guardianship of the estate of a minor or individual who is adjudicated incompetent to the interested party or a special administrator, and he or she shall thereupon take possession of the estate and protect and preserve it, and proceed with the administration and with the care and management of the estate. The authority of a special administrator in the administration or guardianship may be revoked at any time upon the appointment and qualification of a personal representative or guardian, or when for any other cause the court deems it just or expedient. Revocation of authority does not invalidate the special administrator’s acts performed prior to revocation and does not impair the special administrator’s rights to receive from the estate his or her legal charges and disbursements, to be determined by the court.

879.57 History History: 1973 c. 90; 1977 c. 449; 2005 a. 387.

879.59 879.59 Compromises.

879.59(1) (1) Between claimants; parties. The court may authorize personal representatives and trustees to adjust by compromise any controversy that may arise between different claimants to the estate or property in their hands to which agreement the personal representatives or trustees and all other parties in being who claim an interest in the estate and whose interests are affected by the proposed compromise shall be parties in person or by guardian as hereinafter provided.

879.59(2) (2) Between testate and intestate distributees; parties. The court also may authorize the person named to act as personal representative in one or more instruments purporting to be the last will and testament of a decedent, or the petitioners for administration with the will or wills annexed, to adjust by compromise any controversy that may arise between the persons claiming as devisees or legatees under the will or wills and the persons entitled to or claiming the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, to which agreement or compromise the persons named to act as personal representatives or the petitioners for administration with will annexed, those claiming as devisees or legatees and those claiming the estate as intestate shall be parties, provided that persons named to act as personal representatives in any instrument who have renounced or shall renounce the right to act as personal representative and any person whose interest in the estate is unaffected by the proposed compromise shall not be required to be parties to the compromise.

879.59(3) (3) Parties subject to guardianship. Where a person subject to guardianship is a necessary party to a compromise under this section the person shall be represented in the proceedings by the person’s guardian or by a special guardian appointed by the court, who shall in the name and on behalf of the party the guardian represents make all proper instruments necessary to carry into effect any compromise sanctioned by the court.

879.59(4) (4) Persons unknown or not in being. If it appears to the satisfaction of the court that the interests of persons unknown or the future contingent interests of persons not in being are or may be affected by the compromise, the court shall appoint some suitable person to represent those interests in the compromise and to make all proper instruments necessary to carry into effect any compromise sanctioned by the court. If by the terms of any compromise made under this section money or property is directed to be set apart or held for the benefit of or to represent the interest of persons subject to guardianship or persons unknown or unborn, the same may be deposited in any trust company, or any state or national bank within this state, authorized to exercise trust powers, or with a special administrator, and shall remain subject to the order of the court.

879.59(5) (5) Court approval required. An agreement of compromise made in writing under this section, if found by the court to be just and reasonable in its effects upon the interests in the estate or property of persons subject to guardianship, unknown persons, or the future contingent interests of persons not in being, is valid and binding upon such interests as well as upon the interests of adult persons of sound mind.

879.59(6) (6) Procedure. An application for the approval of a compromise under this section shall be made by verified petition, which shall set forth the provisions of any instrument or documents by virtue of which any claim is made to the property or estate in controversy and all facts relating to the claims of the various parties to the controversy and the possible contingent interests of persons not in being and all facts which make it proper or necessary that the proposed compromise be approved by the court. The court may entertain an application prior to the execution of the proposed compromise by all the parties required to execute it and may permit the execution by the necessary parties to be completed after the inception of the proceedings for approval thereof if the proposed compromise has been approved by the estate representatives described in subs. (1) and (2). The court shall inquire into the circumstances and make such order or decree as justice requires.

879.59 History History: 1973 c. 90; 1993 a. 486; 2001 a. 102.

879.59 Cross-reference Cross-reference: See s. 859.31 which provides for compromise of creditor’s claims against the estate.

879.59 Annotation An alleged agreement of compromise will not be enforced if items are disputed and it is not agreed to in writing. Estate of McKillip, 53 Wis. 2d 202, 191 N.W.2d 856 (1971).

879.59 Annotation This section cannot be construed to require that all rights under a will be established and all claims be adjudicated before a compromise of claims is allowed, for that interpretation would not only narrow the area of controversy, eliminate the incentive to compromise, and destroy the purpose of avoiding the costs and risks of litigation, but ignore the right of executors to compromise controversies involving “persons claiming as devisees or legatees” and “persons entitled to or claiming the estate of the deceased” as heirs at law. Estate of Trojan, 53 Wis. 2d 293, 193 N.W.2d 8 (1971).

879.59 Annotation A guardian ad litem can execute a compromise agreement of his ward’s claim in a will contest case when there was no general guardian. Estate of Trojan, 53 Wis. 2d 293, 193 N.W.2d 8 (1971).

879.59 Annotation The court had no authority to approve a stipulation under sub. (1) without the trustee’s approval. In Matter of Estate of McCoy, 118 Wis. 2d 128, 345 N.W.2d 519 (Ct. App. 1984).

879.61 879.61 Discovery proceedings. Any personal representative or any person interested who suspects that any other person has concealed, stolen, conveyed or disposed of property of the estate; or is indebted to the decedent; possesses, controls or has knowledge of concealed property of the decedent; possesses, controls or has knowledge of writings which contain evidence of or tend to disclose the right, title, interest or claim of the decedent to any property; or possesses, controls or has knowledge of any will of the decedent, may file a petition in the court so stating. The court upon, such notice as it directs, may order the other person to appear before the court or a circuit court commissioner for disclosure, may subpoena witnesses and compel the production of evidence, and may make any order in relation to the matter as is just and proper.

879.61 History History: 1977 c. 449; 2001 a. 61.

879.63 879.63 Action by person interested to secure property for estate. Whenever there is reason to believe that the estate of a decedent as set forth in the inventory does not include property which should be included in the estate, and the personal representative has failed to secure the property or to bring an action to secure the property, any person interested may, on behalf of the estate, bring an action in the court in which the estate is being administered to reach the property and make it a part of the estate. If the action is successful, the person interested shall be reimbursed from the estate for the reasonable expenses and attorney fee incurred by the person in the action as approved by the court but not in excess of the value of the property secured for the estate.