NOTE: 1991 Wis. Act 301
, which affected this section, contains extensive legislative council notes.
Determination of descent of property. 867.05(1)
Six years or more after any person dies intestate, leaving an estate which a court in this state has jurisdiction to administer, any person interested in the estate or in any property in the estate may petition the court which has jurisdiction to administer the estate, to determine the descent of the property in the estate. The petition shall be verified and shall show, as particularly as known or can with due diligence be ascertained, the time and place of death and domicile of the decedent, that the estate has not been administered and the other facts which authorize the proceeding, the names, post-office addresses and relationship to the decedent of all heirs and their grantees entitled to any interest in the property, stating who are minors or under legal disability, and the names and addresses of their guardians, and a description of all property for which a determination of descent is sought.
(2) Certificate after hearing without notice.
The court may hear the petition without notice, and after hearing the evidence, if the court is satisfied who the heirs of the decedent are and what their respective rights and interests in the property are, the court shall certify the same and in its certificate shall name the persons entitled to interests therein and the property to which each is entitled. The certificate is prima facie evidence of the facts recited.
(3) Judgment after hearing on notice.
The court may hear the petition after notice of hearing given under s. 879.03
, and after hearing the evidence, if the court is satisfied who the heirs of the decedent are and what their respective rights and interests in the property are, the court shall determine the same and in its judgment shall name the persons entitled to interests therein and the property to which each is entitled.
(4) Recording required.
Whenever the certificate or judgment 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 certificate or judgment 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.
(5) Special administration.
When no administration proceeding has been commenced or no complete tax return has been filed, any person, including the department of revenue, interested in the property, the transfer of which is subject to tax under ch. 72
, may petition for appointment of a special administrator with powers to determine the tax, if:
No petition for administration of property of a decedent is made within 60 days after the decedent's death and the property's transfer appears to be taxable under ch. 72
Administration has been completed without determining the tax;
No tax is due and that fact has not been formally determined;
Assets upon the transfer of which no tax has been paid are discovered; or
Property was transferred in contemplation of the death of the transferor and no application for the adjustment or payment of the tax has been made within 60 days of the transferor's death.
Prior to acting under sub. (5)
, the special administrator shall, by certified mail, notify the distributee of the basis of his or her authority under sub. (5)
Costs and expenses properly incurred by a special administrator shall be paid out of the subject property or by the distributee thereof.
Grounds for appointment of special administrator.
Whenever it appears by petition to the court that a person has died and the court would have jurisdiction for the administration of the person's estate, the court may appoint a special administrator if it appears that:
There is no estate to be administered and an act should be performed on the part of the decedent, the performance of which affects or is of importance to the petitioner or any other person.
The final judgment of distribution in the estate has been entered and an act remains unperformed in the estate, or that unadministered assets have been found or may be found belonging to the estate.
It is necessary to conserve or administer the estate of a decedent before letters can be issued to a personal representative.
A cause of action exists for or against the decedent or the decedent's estate and that it is necessary that some act be performed before letters can be issued to a personal representative.
Other circumstances exist which in the discretion of the court require the appointment of a special administrator.
See s. 856.01
for jurisdiction for administration of estates.
This section does not provide a different procedure for taking depositions than that provided in ch. 804. In Matter of Estate of Berth, 157 W (2d) 717, 460 NW (2d) 436 (Ct. App. 1990).
Who may petition for appointment of special administrator.
Petition for the appointment of a special administrator may be made by any person who has standing to petition for administration of the estate under s. 856.07
, and waiting periods stated in that section do not apply.
Notice of hearing on petition for appointment of special administrator.
The court shall determine whether notice of the hearing for the appointment of a special administrator need be given. If the court deems notice unnecessary or inexpedient or if the appointment should be made without delay, the court shall proceed to hear the matter without notice. If notice of hearing is required, it shall be given under s. 879.03
Bond of special administrator.
If it appears that anything of value will come into the hands of the special administrator, the court may require the special administrator to give bond in the amount the court deems reasonable, except that no bond shall be required of any trust company bank, state bank or national banking association which is authorized to exercise trust powers and which has complied with s. 220.09
. If the person appointed special administrator is subsequently appointed personal representative, the person's bond given as special administrator continues in effect as the person's bond as personal representative unless otherwise ordered by the court. Section 895.345
does not apply to bonds of special administrators.
History: 1993 a. 486
Letters of special administration; no appeal.
Upon the appointment of a special administrator, letters of special administration shall be issued to the special administrator by the court. An order appointing a special administrator is a nonappealable order.
Powers, duties and liabilities of special administrator.
A special administrator who is appointed without notice of hearing shall have only those powers and duties that are specifically granted to the special administrator by order of the court. The court may, following a hearing on notice to or waiver of notice by all interested parties, grant the special administrator by general order the same powers, duties and liabilities as a personal representative, except as expressly limited by the order of the court. By order the court may expressly grant the special administrator powers and impose duties in addition to those granted by statute to personal representatives as may be necessary to accomplish the purpose for which the special administrator is appointed.
History: 1971 c. 40
; 1993 a. 486
As defined in s. 851.23
"personal representative" as used in chs. 851
does not include "special administrator".
Compensation of special administrator.
The special administrator shall be allowed all necessary expenses incurred in the care and management of the estate and the performance of the special administrator's duties; for the special administrator's services the special administrator shall be allowed the compensation the court deems reasonable. If a special administrator is subsequently appointed personal representative, his or her compensation as special administrator may be considered and fixed at the time his or her compensation as personal representative is determined.
History: 1993 a. 486
Termination of authority and discharge of special administrator. 867.21(1)(1)
When no personal representative is to be appointed.
The special administrator shall be discharged whenever the court is satisfied that the special administrator has properly performed his or her duties. Before discharging the special administrator the court may require the special administrator to file any accounts or reports which the court deems necessary. Discharge may be granted with or without notice as the court determines. If notice of hearing upon the application for discharge is required, it shall be given under s. 879.03
(2) Upon granting letters to a personal representative.
Upon the granting of letters to a personal representative of the estate of the decedent, the power of the special administrator ceases and the special administrator shall forthwith file the special administrator's account and deliver to the personal representative all property of the estate which the special administrator has in his or her possession. The court may accept the written receipt of the personal representative as evidence of delivery and upon approving the special administrator's account shall discharge the special administrator. If the special administrator is appointed personal representative, the special administrator need not file an account as special administrator unless the special administrator's bond is not continued as his or her bond as personal representative. If no accounting as special administrator is made the special administrator shall account for the special administration in his or her account as personal representative.
History: 1993 a. 486
Sub. (1), providing for the discharge of a special administrator who has "properly performed his duties" with or without notice as the court determines, is limited to the situation where the special administration has been completed and no further administration is contemplated, as is made clear from (2). Fundamental notions of fair play require that if a special administrator is to be removed while special administration continues, he must be provided an opportunity to respond to any charges which in the court's mind justify his removal. Estate of White, 69 W (2d) 649, 231 NW (2d) 194.