CHAPTER 863
CLOSING ESTATES
863.01 Distribution of specific property to distributee and partial distribution before final judgment.
863.05 Execution and levies by creditors of distributees prohibited.
863.07 Assignment by distributee.
863.08 Exchange by distributee and surviving spouse.
863.09 Allowance for tombstone and care of grave.
863.11 Order in which assets appropriated; abatement.
863.13 No exoneration of encumbered property.
863.15 Right of retention.
863.16 Value used in distribution of fractional shares.
863.17 Partition by agreement.
863.19 Valuation used in distribution of estate assets.
863.21 Construction of will, notice.
863.23 Determination and proof of heirship.
863.25 Petition for final judgment.
863.27 Contents of final judgment.
863.29 Recording final judgment.
863.31 Conclusiveness of final judgment.
863.33 Estates to be completed promptly.
863.37 Distribution of money or other property where payment or transfer is prohibited.
863.41 Receipts to be filed.
863.43 Distribution to ward; notice.
863.45 Receipts from guardians.
863.46 Remedy of creditors of certain heirs and legatees; service of citation.
863.47 Order of discharge of personal representative.
863.49 Inactive estates; summary discontinuance.
Ch. 863 Cross-reference
Cross-reference: See definitions in ch.
851.
863.01
863.01
Distribution of specific property to distributee and partial distribution before final judgment. Before final judgment has been rendered the personal representative may deliver to any distributee possession of any specific property to which the distributee is entitled under the terms of the will or any statute. The personal representative may make one or more partial distributions of the estate, provided that other distributees and claimants are not prejudiced thereby. The personal representative may require the distributees to give security for the return of such property.
863.01 History
History: 1993 a. 486.
863.05
863.05
Execution and levies by creditors of distributees prohibited. Except as provided in
s. 863.46, no garnishment, attachment or execution may issue against nor may any levy be made against any property of the estate under any judgment or cause of action against any distributee of the estate.
863.05 History
History: 1985 a. 29.
863.05 Cross-reference
Cross-reference: Chapter
816 and 813.026 provide remedies for creditors through the appointment of a receiver.
863.07
863.07
Assignment by distributee. If any person interested in an estate assigns all or part of his or her interest therein (other than an interest not assignable by the specific language of the will) as collateral or otherwise and the assignee serves a copy thereof on the personal representative of the estate and files a copy with the court in which the estate is being administered before the entry of the final judgment and before the property or interest covered by the assignment has been distributed under
s. 863.01, the court shall assign to the assignee in the final judgment the interest or part of the interest of the assignor included within the assignment to the extent that the assignment is valid as determined by the court, after giving effect to any credits to which the assignor may prove himself or herself entitled. A personal representative incurs no liability to an assignee of a person interested for any acts performed or distribution made by the personal representative prior to the time a copy of the assignment is received by the personal representative or he or she has actual knowledge of the assignment.
863.07 History
History: 1977 c. 449.
863.08
863.08
Exchange by distributee and surviving spouse. In its final judgment or other order, the court shall assign items to the surviving spouse and distributee to conform with the exchange under
s. 857.03 (2) to the extent that the court approved the exchange.
863.08 History
History: 1987 a. 393.
863.09
863.09
Allowance for tombstone and care of grave. 863.09(1)(1)
Tombstone. In case no provision is made in the will for a tombstone or monument or marker at the grave of the decedent, and none has been erected, the personal representative may expend a reasonable sum for that purpose. The expenditure is subject to the approval of the court and is classed as funeral expense.
863.09(2)
(2) Care of grave. The court may order the personal representative to pay a suitable amount for the care of the grave of the decedent. The expenditure is classed as funeral expense.
863.09 History
History: 1989 a. 309.
863.09 Cross-reference
Cross-reference: For court orders concerning perpetual care of graves, see ss.
157.11 and
157.125.
863.11
863.11
Order in which assets appropriated; abatement. 863.11(1)(a)(a) Except as provided in
sub. (2) and
s. 853.25, shares of the distributees abate, without any preference or priority as between real and personal property, in the following order:
863.11(1)(b)
(b) A general bequest charged on any specific property or fund is, for purposes of abatement, considered property specifically bequeathed to the extent of the value of the thing on which it is charged. Upon the failure or insufficiency of the thing on which it is charged, it is considered a general bequest to the extent of the failure or insufficiency. Abatement within each classification under
par. (a) 1. to
4. is in proportion to the amounts of that property each of the beneficiaries would have received had full distribution of that property been made in accordance with the terms of the will.
863.11(2)
(2) Contrary provisions, plan or purpose. If the provisions of the will or the testamentary plan or the express or implied purpose of the bequest would be defeated by the order of abatement stated in
sub. (1), the shares of the distributees abate in such other manner as may be found necessary to give effect to the intention of the testator.
863.11 History
History: 1983 a. 186;
1995 a. 225.
863.11 Annotation
A general direction to pay debts requires that the federal estate tax be deducted from the gross estate before computing the marital deduction as opposed to a contention that the full deduction be allowed since the tax should be paid from assets going to other heirs. Greene v. United States, 476 F (2d) 116.
863.13
863.13
No exoneration of encumbered property. 863.13(1)(1)
Generally. All specifically devised property shall be assigned to the beneficiary without exoneration unless the will of the decedent provides that a debt which is secured by a mortgage, lien, pledge or other security agreement which constitutes an encumbrance on property which is specifically devised should be paid out of other assets in the estate and the property assigned to the beneficiary free of the encumbrance. Unless the will provides to the contrary, if the debt or interest on the debt which is secured by the encumbrance on the specifically devised property is paid in whole or in part out of other assets in the estate, the specifically devised property shall be assigned to the beneficiary only if:
863.13(1)(a)(a) the beneficiary contributes to the estate an amount equal to the amount which the estate has paid, or (b) the personal representative secures such amount for the estate through a new encumbrance on the specifically devised property. If the estate is not reimbursed under (a) or (b), the personal representative shall sell the specifically devised property, reimburse the estate from the proceeds of the sale and assign the balance of the proceeds to the specific beneficiary.
863.13(2)
(2) Joint tenancy. If all or any part of a debt which is secured by a mortgage, lien, pledge or other security agreement which constitutes an encumbrance on property in which the decedent at the time of the decedent's death had an interest as a joint tenant, is paid out of assets in the estate as the result of a claim being allowed against the estate, the estate is subrogated to all rights which the claimant had against the property, unless the will of the decedent provides to the contrary.
863.13(3)
(3) Insurance. If all or any part of a debt which is secured by a mortgage, lien, pledge or other security agreement which constitutes an encumbrance on the proceeds payable under a life insurance policy in which the decedent was the named insured, is paid out of assets in the estate as the result of a claim being allowed against the estate, the estate is subrogated to all rights which the claimant had against the proceeds, unless the will of the decedent provides to the contrary.
863.13 History
History: 1993 a. 486.
863.13 Cross-reference
Cross-reference: See s.
859.43 which deals with payment of debts which are secured by an encumbrance on property in the estate.
863.15
863.15
Right of retention. When a distributee of an estate is indebted to the estate, the amount of the indebtedness if due, or the present worth of the indebtedness, if not due, shall be treated as an offset by the personal representative against property of the estate to which the distributee is entitled. In contesting the offset the distributee shall have the benefit of any defense which would be available to the distributee in a direct proceeding by the personal representative for the recovery of the debt.
863.15 History
History: 1993 a. 486.
863.16
863.16
Value used in distribution of fractional shares. In distributing property to distributees who receive fractional shares of the estate under the statutes of descent and distribution or under provisions in a will, the personal representative shall divide the property among the distributees on the basis of the value of the property at the time of distribution unless the will provides otherwise.
863.17
863.17
Partition by agreement. Property passing to persons as joint tenants or tenants in common may be partitioned among those persons by the judgment of the court assigning the property, if a petition therefor signed by all persons interested in the property involved is filed with the court prior to the judgment. The petition must set out the manner in which the property is to be divided and the agreement of all persons interested in the property involved.
863.17 History
History: 1977 c. 449.
863.19
863.19
Valuation used in distribution of estate assets. If a general bequest of estate assets, including a pecuniary bequest, in a dollar amount fixed by formula or otherwise is satisfied by a distribution in kind, the distribution shall be made at current fair market values unless the will expressly provides that another value may be used. If the will requires or permits a different value to be used, all assets available for distribution, including cash, shall unless otherwise expressly provided be so distributed that the assets, including cash, distributed in satisfaction of the bequest will be fairly representative of the net appreciation or depreciation in the value of the available property on the dates of distribution. A provision in a will that the personal representative may fix values for the purpose of distribution does not of itself constitute authorization to fix a value other than current fair market value.
863.19 Annotation
The valuation of assets for distribution is the current market value at the time of distribution. Estate of Naulin, 56 W (2d) 100, 201 NW (2d) 599.
863.21
863.21
Construction of will, notice. Notice of hearing upon a petition for the construction of a will shall be given under
s. 879.05. If a petition for final judgment contains a request for construction of a will, the notice of hearing on such petition shall include, or be accompanied by, specific notice of the request for construction, the reasons therefor and a copy of the petition or the part thereof requesting construction.
863.21 History
History: 1975 c. 331.
863.21 Annotation
When the proposed final decree uses language different from that appearing in the will or construes the will in the sense of ascertaining the meaning of the testator rather than following express, clear instructions, a record of the reasons for the construction should be made, a special notice of the proposed construction of the will should be given to the parties interested, and a copy of the petition for such construction should accompany such notice. [To the extent prior cases rest on the proposition that no special notice of construction of a will need be given, they are overruled.] Estate of MacLean, 47 W (2d) 396, 177 NW (2d) 874.
863.21 Annotation
Where a will mistakenly assumes that the homestead is in joint tenancy, the homestead does not pass by intestacy, it falls into the residue, which was set up for the benefit of the surviving wife. Estate of Sneeberger, 54 W (2d) 657, 196 NW (2d) 662.
863.21 Annotation
The supreme court declines to adopt the doctrine of probable intent, which would allow a court to receive extrinsic evidence, irrespective of the presence or absence of an ambiguity, to ascertain the likely intention of the testator. Estate of Connolly, 65 W (2d) 440, 222 NW (2d) 885.
863.23
863.23
Determination and proof of heirship. In every administration of an estate in which notice to creditors is required, except in proceedings under
ch. 865, the persons who are the heirs of the decedent shall be determined by the court after hearing. Proof and determination of heirship may be had under this section in an estate administered informally under
ch. 865 if desired by the personal representative or interested persons. Notice of the hearing is required except in summary assignment under
s. 867.02. Notice shall be given under
s. 879.03 but shall include notice by publication under
s. 879.05 (4). Determination of heirship shall not be made until after the testimony or deposition of one or more witnesses is reduced to writing and filed. A petition for determination of heirship may be included in the petition for administration, petition for approval of final account and final judgment or in a separate petition; and the notice may be included in the notice of hearing on any of the petitions, or in the notice to creditors.
863.23 Cross-reference
Cross-reference: See s.
856.15 which provides for proof of heirship outside the county.
863.23 Note
NOTE: Under s. 867.02 no notice to heirs is required if the estate is under $30,000. Notice to creditors is still required under s. 867.02 (2) (d).
863.25
863.25
Petition for final judgment. Except where final settlement is by sworn statement under
s. 865.16, after the payment of the allowances, debts, taxes, funeral expenses and expenses of administration and when, if necessary, a fund has been withheld from distribution for the payment of contingent claims, for meeting possible tax liability or for any other reasonable purpose, the personal representative shall, if the estate is in a condition to be closed, file the final account and at the same time petition the court for hearing on the final account and for final judgment assigning the estate to the persons entitled to the same. Notice of hearing shall be given under
s. 879.03. If the petition requests the construction of a will, the notice shall comply with the requirements under
s. 863.21.
863.25 History
History: 1973 c. 39;
1975 c. 331,
421.
