CHAPTER 856
OPENING ESTATES
856.03 Wills in court for safekeeping.
856.05 Delivery of will to court.
856.07 Who may petition for administration.
856.09 Petition for administration, contents.
856.11 Notice of hearing on petition for administration.
856.13 Will must be proved; informal probate.
856.15 Proof of will and proof of heirs where uncontested.
856.17 Lost will, how proved.
856.19 Order admitting will.
856.21 Persons entitled to domiciliary letters.
856.23 Persons who are disqualified.
856.25 Bond of personal representative.
856.27 Appointment of special administrator if appointment of personal representative is delayed.
856.29 Letters issued to trustee of testamentary trust.
856.31 Selection of attorney to represent estate.
Ch. 856 Cross-reference
Cross-reference: See definitions in ch.
851.
856.01
856.01
Jurisdiction. The jurisdiction of a proceeding for administration of a decedent's estate is as follows:
856.01(1)
(1) If the decedent was domiciled in this state, in the county in this state where the decedent was domiciled at the time of the decedent's death.
856.01(2)
(2) If the decedent had no domicile in this state, in any county in this state where property of the decedent is located, and the court which first exercises jurisdiction under this subsection has exclusive jurisdiction.
856.01 History
History: 1977 c. 449;
1993 a. 486.
856.03
856.03
Wills in court for safekeeping. If a will has been filed with a court for safekeeping during the testator's lifetime, the court on learning of the death of the testator shall open the will and give notice of the court's possession to the executor named in the will, otherwise to some person interested in the provisions thereof. If probate jurisdiction belongs to any other court, the will shall be delivered to that court.
856.03 History
History: 1977 c. 449.
856.05
856.05
Delivery of will to court. 856.05(1)
(1)
Duty and liability of person with custody. Every person, other than the executor, having the custody of any will shall, within 30 days after he or she has knowledge of the death of the testator, file the will in the proper court or deliver it to the person named as executor in the will. Every person named as executor shall, within 30 days after he or she has knowledge that he or she is named executor, and has knowledge of the death of the testator, file the will in the proper court, unless the will has been otherwise deposited with the court. Every person who neglects to perform any of the duties required in this subsection, without reasonable cause, is liable in a proceeding in court to every person interested in the will for all damages caused by the neglect.
856.05(2)
(2) Duty of person with information. Any person having information which would reasonably lead him or her to believe in the existence of any will of a decedent of which he or she does not have custody and having information that no more recent will of the deceased has been filed with the court and that 30 days have elapsed after the death of the decedent, shall submit this information to the court within 30 days after he or she has the information.
856.05(3)
(3) Penalty. Any person who with intent to injure or defraud any person interested therein suppresses or secretes any will of a person then deceased or any information as to the existence or location of any will or having custody of any will fails to file it in the court or to deliver it to the executor named therein shall be punished by the court by imprisonment in the county jail for not more than one year or by fine not to exceed $500 or both.
856.05(4)
(4) Liability for neglect. If any person has custody of any will after the death of the testator and after a petition for administration has been filed, neglects without reasonable cause to deliver the will to the proper court after he or she has been duly notified in writing by the court for that purpose, he or she may be committed to the county jail by warrant issued by the court and there kept in close confinement until he or she delivers the will as required.
856.05 History
History: 1977 c. 449.
856.07
856.07
Who may petition for administration. 856.07(1)
(1)
Generally. Petition for administration of the estate of a decedent may be made by any executor named in the will or by any person interested.
856.07(2)
(2) After 30 days. If none of those named in
sub. (1) has petitioned within 30 days after the death of the decedent, petition for administration may be made by any person who was guardian of the decedent at the time of the decedent's death, any creditor of the decedent, anyone who has a cause of action or who has a right of appeal which cannot be maintained without the appointment of a personal representative or anyone who has an interest in property which is or may be a part of the estate.
856.07 History
History: 1973 c. 90.
856.07 Cross-reference
Cross-reference: See s.
879.57 for provision for petition by any interested person or a special administrator when there appears to be no person in the state to petition for administration.
856.09
856.09
Petition for administration, contents. The petition for administration shall comply with
s. 879.01 and in addition shall state:
856.09(1)
(1) The name, age, domicile, post-office address and date of death of the decedent;
856.09(2)
(2) That the decedent left property requiring administration;
856.09(3)
(3) Whether the decedent left a will and the date of execution of the will;
856.09(4)
(4) The name and post-office address of the person named as executor in the will;
856.09(5)
(5) The name and post-office address of the person named as testamentary trustee in the will;
856.09(6)
(6) The name and post-office address of the person for whom letters are asked and the facts which show the person's eligibility for appointment as personal representative.
856.09 History
History: 1993 a. 486.
856.09 Annotation
Cross-references: See s. 863.23 for provision that a petition for determination of heirship may be included in a petition for administration.
856.09 Annotation
See s. 879.25 for requirement of filing of an affidavit as to military service.
856.09 Annotation
See ss. 813.22 to 813.34, Uniform Absence as Evidence of Death and Absentee's Property Act, for a procedure for determining the fact of death when evidence is not available.
856.11
856.11
Notice of hearing on petition for administration. When a petition for administration is filed, the court shall set a time for proving the will, if any, for determination of heirship and for the appointment of a personal representative. Notice of hearing on the petition shall be given as provided in
s. 879.03 with the additional requirement that when any person interested is represented by a guardian ad litem, notice shall be given to both the person interested and the person's guardian ad litem. A copy of the will which is being presented for proof shall be sent to all persons interested, except those whose only interest is as a beneficiary of a monetary bequest or a bequest or devise of specific property. To those persons a notice of the nature and amount of the devise or bequest shall be sent.
856.11 History
History: 1993 a. 486.
856.11 Cross-reference
Cross-reference: See s.
863.23 which provides for determination of heirship and proof of heirship.
856.11 Annotation
See note to 879.05, citing In re Estate of Phillips, 92 W (2d) 354, 284 NW (2d) 908 (1979).
856.13
856.13
Will must be proved; informal probate. No will shall pass any property unless it has been proved and admitted to probate or informally admitted to probate under
ch. 865.
856.13 History
History: 1973 c. 39.
856.13 Annotation
Where proponent, confidant of testatrix and sole beneficiary, actively participated in the procurement, drafting and execution of the will under highly suspicious circumstances, a presumption of undue influence was raised. In re Estate of Malnar, 73 W (2d) 192, 243 NW (2d) 435.
856.15
856.15
Proof of will and proof of heirs where uncontested. 856.15(1)(1)
Generally. The court may grant probate of an uncontested will on the execution in open court by one of the subscribing witnesses of a sworn statement that the will was executed as required by the statutes and that the testator was of sound mind, of full age and not acting under any restraint at the time of the execution thereof. If an uncontested will contains an attestation clause showing compliance with the requirements for execution under
s. 853.03 or
853.05, the court may grant probate without any testimony or other evidence.
856.15(2)
(2) Proof outside the county. Upon request of the petitioner, the petitioner's attorney or, if the petitioner is in the military service, the petitioner's attorney-in-fact, the court in which the estate is pending may by order direct that proof of heirs or proof of will, if uncontested, may be taken in open court in any county in this state, or by a judge having probate jurisdiction in any other state or territory of the United States, for use in the court in which the estate is pending.
856.15(3)
(3) Removal of will for proof outside the county. If a will filed for probate is removed from the court in which the estate is pending so that it may be proved outside the county, it shall during its absence be replaced by a photographic copy or a certified copy thereof.
856.15(4)
(4) Will and proof to be returned and filed. After a will is proved in a court other than the court in which the estate is pending, the will and the proof of will shall be sent to the court in which the estate is pending. If no contest develops at the time fixed for proving the will in the court in which the estate is pending, the will and proof of will shall be filed as though made in the court in which the estate is pending.
856.15(5)
(5) When no competent subscribing witness in state. If no competent subscribing witness resides in this state at the time fixed for proving the will or if none of them, after reasonable diligence can be found in this state, the court may admit the testimony of other witnesses to prove the competency of the testator, the execution, proof of testator's handwriting and that of one of the subscribing witnesses.
856.15 Cross-reference
Cross-reference: See s.
863.23 which contains the general provisions in regard to proof of heirship and determination of heirship.
856.17
856.17
Lost will, how proved. If any will is lost, destroyed by accident or destroyed without the testator's consent the court has power to take proof of the execution and validity of the will and to establish the same. The petition for the probate of the will shall set forth the provisions thereof.
856.17 History
History: 1977 c. 449.
856.17 Annotation
Petition in the alternative to establish one of 3 wills held proper. Proof held sufficient to establish the last will effective. Estate of Markofske, 47 W (2d) 769, 178 NW (2d) 9.
856.17 Annotation
Lost wills: The Wisconsin law. Burrell and Porter, 60 MLR 351.
856.19
856.19
Order admitting will. Every will, when admitted to probate as prescribed by statute, shall have that fact signified thereon by the court.
856.19 Annotation
Without prima facie showing of fraud, mere allegation is not sufficient to require court to reopen admission of will to probate after time for appeal expired. In Matter of Estate of Kennedy, 74 W (2d) 413, 247 NW (2d) 75.
856.21
856.21
Persons entitled to domiciliary letters. Letters shall be granted to one or more of the persons hereinafter mentioned, who are not disqualified, in the following order:
856.21(1)
(1) The executor named in the will.
856.21(2)
(2) Any person interested in the estate or the person's nominee within the discretion of the court.
856.21(3)
(3) Any person whom the court selects.
856.21 History
History: 1993 a. 486.
856.21 Annotation
An attorney may not solicit, either directly or indirectly, that he or a relative be named as executor in a will. State v. Gulbankian, 54 W (2d) 605, 196 NW (2d) 733.
856.23
856.23
Persons who are disqualified. 856.23(1)
(1) A person including the executor named in the will is not entitled to receive letters if the person is any of the following:
856.23(1)(c)
(c) A corporation not authorized to act as a fiduciary in this state.
