At least 30 days prior to the date set under s. 859.01
, the claimant did not have actual knowledge that the estate proceeding was pending and of the court in which that proceeding was pending.
Failure of a claimant timely to file a claim against a decedent's estate does not bar the claimant from satisfying the claim from property other than the decedent's estate.
See s. 893.93 (1) (c)
, which bars all claims against a decedent or the estate if administration not commenced within 6 years after death.
See s. 859.45
as to tort claims.
An otherwise valid lease and sale of personal property executed by the decedent are not claims against the estate subject to the limitations of this section. In re Estate of Taylor, 81 Wis. 2d 687
, 260 N.W.2d 803
A claim against an estate for personal services rendered during an adulterous relationship with the deceased was allowed under a quasi-contract theory. In Matter of Estate of Steffes, 95 Wis. 2d 490
, 290 N.W.2d 697
The mere fact that the personal representative corresponded with creditors about accounts payable did not give rise to a fiduciary duty on the part of the personal representative to disclose information about filing claims. In Matter of Estate of Lecic, 104 Wis. 2d 592
, 312 N.W.2d 773
The testator's breach of contract in failing to make certain provisions by will is not actionable in tort. Landwehr v. Citizens Trust Co. 110 Wis. 2d 716
, 329 N.W.2d 411
Probate filing deadlines for surviving spouses under a marital property regime. Rasmussen and Brown. WBB June 1988.
Continuance of separate action.
If an action is pending against a decedent at the time of his or her death and the action survives, the plaintiff in that action may serve a notice of substitution of party defendant on the personal representative and file proof of service of notice in the court. Filing of proof of service on or before the deadline for filing a claim under s. 859.01
gives the plaintiff the same rights against the estate as the filing of a claim. A judgment in any such action constitutes an adjudication for or against the estate.
History: 1977 c. 449
; 1989 a. 96
When disposition of a homestead was ordered in a divorce judgment, the family court and probate court had concurrent jurisdiction and the divorce judgment remained enforceable by the family court. Morrissette v. Morrissette, 99 Wis. 2d 467
, 299 N.W.2d 590
(Ct. App. 1980).
Notice; publication. 859.07(1)(1)
Notice of the deadline for filing a claim under s. 859.01
shall be given by publication, under s. 879.05 (4)
, and may be given with the notice for granting letters. The first insertion shall be made within 15 days of the date of the order under s. 859.01
The personal representative shall provide notice of the date set under s. 859.01
to the department of health and family services or the department of corrections, as applicable, and to the county clerk of the decedent's county of residence, as defined in s. 49.001 (6)
if, at any time prior to or at the time of the decedent's death, any of the following applied:
The decedent was a patient or inmate of any state or county hospital or institution.
The notice under par. (a)
shall comply with all of the following:
The notice shall be in writing on forms provided by the applicable department or county clerk.
The notice shall be sent by registered or certified mail not less than 30 days before the date set under s. 859.01
The personal representative may at any time give notice to any potential claimant of the deadline for filing a claim against the estate under s. 859.01
and of the court in which the estate proceeding is pending.
Notice to creditors by publication does not violate the due process clause. In Matter of Estate of Fessler, 100 Wis. 2d 437
, 302 N.W.2d 414
Transfer of claims when administration fails.
Claims filed against the estate of a decedent following an order and notice to creditors shall, if the administration proceeding fails, be deemed filed upon notice to creditors in a subsequent administration proceeding. If the subsequent proceeding is in a different county, such claims shall be transmitted to and filed in the proper court.
Form and verification of claims. 859.13(1)
No claim shall be allowed unless it is in writing, describes the nature and amount thereof, if ascertainable, and is sworn to by the claimant or someone for the claimant that the amount is justly due, or if not yet due, when it will or may become due, that no payments have been made thereon which are not credited, and that there are no offsets to the knowledge of the affiant, except as therein stated. If the claim is one for which property is available under s. 859.18
, the claim shall describe which classification under s. 766.55 (2)
is applicable to the claim. The claim shall also show the post-office address of the claimant. The presumption under s. 766.55 (1)
applies to the classification of claims for which property is available under s. 859.18
(2) Requirements when claim founded on written instrument.
If a claim is founded on a written instrument which is available, the original or a copy thereof with all endorsements must be attached to the claim.
History: 1985 a. 37
See s. 859.19
as to secured claims.
As to sub. (1) see notes in 1985 Wis. Act 37
, marital property trailer bill.
Provisions of sub. (2) are properly construed as directory and not mandatory. In matter of Estate of Alexander, 75 Wis. 2d 168
, 248 N.W.2d 475
A claimant has the burden of proving the existence of an express agreement by a deceased former employer to pay compensation in addition to wages paid during the claimant's employment. In re Estate of Huber, 81 Wis. 2d 55
, 259 N.W.2d 714
Effect of statute of limitations.
Except as provided in ss. 46.10 (11)
and 49.195 (1)
, a claim shall not be allowed which was barred by any statute of limitations at the time of the decedent's death. A claim shall not be barred by statutes of limitation which was not barred at the time of the decedent's death if the claim is filed against the decedent's estate in the court on or before the deadline for filing a claim under s. 859.01
See s. 893.03
, which provides that the presentation of a claim in circuit court is deemed the commencement of an action.
See s. 856.07
, which authorizes any creditor of a decedent to petition for the administration of the estate 30 days after the date of death.
Claims not due.
Upon proof of a claim which will become due at some future time, the court may:
Allow it at the present value and payment may be made as in the case of an absolute claim which has been allowed;
Order the personal representative to retain personally sufficient funds to satisfy the claim upon maturity; or
Order a bond to be given by the distributees for payment in satisfaction of the claim and the estate may be closed.
History: 1985 a. 332
Satisfaction of obligations at death of a spouse. 859.18(1)(a)
"Credit" means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for the property or services.
"Creditor" means a person who regularly extends credit.
At the death of a spouse, property, including the proceeds of or property exchanged for that property, that but for the death of the spouse would have been available under s. 766.55 (2)
for satisfaction of an obligation continues to be available for satisfaction, except as provided in subs. (3)
Unless the obligation resulted from an extension of credit or from a tax obligation to this state, upon the death of a spouse who was the only obligated spouse under s. 766.55 (2) (a)
or the only incurring spouse under s. 766.55 (2) (b)
No income of the surviving spouse is available for satisfaction of an obligation described under s. 766.55 (2)
Marital property of the surviving spouse, if otherwise available for satisfaction of an obligation described under s. 766.55 (2)
, is available to the extent of the value of the marital property at the death of the decedent spouse.
If the decedent spouse was the only obligated spouse under s. 766.55 (2) (a)
or the only incurring spouse under s. 766.55 (2) (b)
, the following property is not available for satisfaction of the obligation:
Joint tenancy property in which the decedent spouse was a tenant, subject to any judgment lien on which execution was issued before the spouse's death.
Deferred employment benefits arising from the decedent spouse's employment.
Proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.
If the surviving spouse is the only obligated spouse under s. 766.55 (2) (a)
or the only incurring spouse under s. 766.55 (2) (b)
, the following property transferred to a person other than the surviving spouse is not available for satisfaction:
The decedent's interest in joint tenancy property, subject to any judgment lien on which execution was issued before the decedent's death.
Deferred employment benefits arising from the employment of the decedent spouse.
The proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.
If otherwise available under this section to satisfy an obligation under s. 766.55 (2)
A provision in a marital property agreement, as defined under s. 766.01 (12)
, which provides for the disposition of either or both spouses' property upon the death of a spouse does not affect property available under this section for satisfaction unless that property was not available for satisfaction under the marital property agreement while both spouses were alive and the agreement is binding on the creditor under s. 766.55 (4m)
or 766.56 (2) (c)
See 1985 Wis. Act 37
, which contains an extensive note and an explanatory chart following this section.
NOTE: 1991 Wis. Act 301
, which affected this section, contains extensive legislative council notes.
When a creditor holds any security for a claim the security shall be described in the claim, and the judgment allowing the claim shall describe the security. The security is sufficiently described if the security document is described by date and by the recording or filing data.
Payment of the claim shall be upon the basis of:
The full amount thereof if the creditor surrenders the security; or
If the creditor realizes on the security before receiving payment, then upon the full amount of the claim allowed less the fair value of the security.
History: 1985 a. 332
See s. 859.13
, which deals with the form and verification of claims generally.
See s. 859.43
, which deals with the payment of secured claims.
See s. 863.13
, which deals with the exoneration of encumbered property.
If the amount or validity of a claim cannot be determined until some time in the future, the claim is a contingent claim regardless of whether the claim is based on an event which occurred in the past or on an event which may occur in the future. Except for claims of the type not required to be filed under s. 859.02
, contingent claims which cannot be allowed as absolute must, nevertheless, be filed in the court and proved in the same manner as absolute claims. If allowed subject to the contingency, the order of allowance shall state the nature of the contingency. If the claim is allowed as absolute before distribution of the estate, it shall be paid in the same manner as absolute claims of the same class. In all other cases the court may provide for the payment of contingent claims in any one of the following methods:
The creditor and personal representative may determine, by agreement, arbitration or compromise, the value thereof, according to its probable present worth, and it may be allowed and paid in the same manner as an absolute claim.
The court may order the personal representative to make distribution of the estate but to retain sufficient funds to pay the claim if and when the same becomes absolute; but for this purpose the estate shall not be kept open longer than 2 years after distribution of the remainder of the estate has been made; and if the claim has not become absolute within that time, distribution shall be made to the distributees of the retained funds, after paying any costs and expenses accruing during such period but the distributees shall be liable to the creditor to the extent provided in s. 859.23
, if the contingent claim thereafter becomes absolute. When distribution is so made to distributees, the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.
The court may order distribution of the estate as though the contingent claim did not exist, but the distributees shall be liable to the creditor as limited by s. 859.23
, if the contingent claim thereafter becomes absolute; and the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.
Such other method as the court orders.
History: 1989 a. 96
; 1993 a. 486
Payment of contingent claims by distributees.
If a contingent claim is filed and allowed against an estate subject to the contingency and all the assets of the estate including the fund set apart for the payment thereof has been distributed, and the claim thereafter is allowed as absolute, the creditor may recover thereon against those distributees, or the persons who furnish bond for the distributees, whose distributive shares have been increased by reason of the fact that the amount of the claim as finally determined was not paid prior to final distribution, if a proceeding therefor is commenced in court within 6 months after the claim is allowed as absolute. A distributee or the person who furnishes bond for the distributee shall not be liable for an amount exceeding his or her proportionate share of the estate subject to the claim, nor for an amount greater than the value of the property which he or she received from the estate, the value to be determined as of the time of distribution to the distributee.