AB645-ASA1,70,7
4(2) Manner of notice. A claimant shall mail written notice of a claimed lack
5of entitlement under sub. (1) to the 3rd party's main office or home by registered or
6certified mail, return receipt requested, or serve the claim upon the 3rd party in the
7same manner as a summons in a civil action.
AB645-ASA1,70,15
8(3) Deposit of property with court. (a) Upon receipt of written notice of a
9claimed lack of entitlement under this chapter, a 3rd party may transfer property
10held by it to the court having jurisdiction of the probate proceedings relating to the
11decedent's estate. If no proceedings have been commenced, the transfer may be made
12to the court having jurisdiction of probate proceedings relating to decedents' estates
13located in the county of the decedent's residence. The court shall hold the property
14and, upon its determination of the owner, shall order disbursement in accordance
15with the determination.
AB645-ASA1,70,1716
(b) Property transferred to the court discharges the 3rd party from all claims
17for the property.
AB645-ASA1,70,22
18854.24 Protection of buyers. A person who purchases property for value or
19who receives property in partial or full satisfaction of a legally enforceable obligation
20is neither obligated under this chapter to return the property nor liable under this
21chapter for the value of the property, unless the person has notice as described in s.
22854.23 (2).
AB645-ASA1,71,3
23854.25 Personal liability of recipients not for value.
(1) Original
24recipients. A person who, not for value, receives property to which the person is not
25entitled under this chapter shall return the property. If the property is not returned,
1the recipient shall be personally liable for the value of the property to the person who
2is entitled to it under this chapter, regardless of whether the recipient has the
3property, its proceeds or property acquired with the property or its proceeds.
AB645-ASA1,71,9
4(2) Subsequent recipients. (a) If a recipient described in sub. (1) gives all or
5part of the property described in sub. (1) to a subsequent recipient, not for value, the
6subsequent recipient shall return the property. If the property is not returned, the
7subsequent recipient shall be personally liable to the person who is entitled to it
8under this chapter for the value received, if the subsequent recipient has the
9property, its proceeds or property acquired with the property or its proceeds.
AB645-ASA1,71,1410
(b) If the subsequent recipient described in par. (a) does not have the transfer
11described, its proceeds or the property acquired with the property or its proceeds, but
12knew or should have known of his or her liability under this section, the subsequent
13recipient remains personally liable to the person who is entitled to it under this
14chapter for the value received.
AB645-ASA1,71,18
15(3) Mode of satisfaction. On petition of the person entitled to the property
16under this chapter showing that the mode of satisfaction chosen by the recipient in
17sub. (1) or (2) will create a hardship for the entitled person, the court may order that
18a different mode of satisfaction be used.
AB645-ASA1,71,22
19854.26 Effect of federal preemption. If any provision in this chapter is
20preempted by federal law with respect to property covered by this chapter, a person
21who receives property, other than for full consideration, which the person is not
22entitled to receive under this chapter is subject to s. 854.25.
AB645-ASA1,72,3
1856.05
(5) Applicability of section. This section applies to wills, codicils,
2documents incorporated by reference under s. 853.32 (1) or (2) and information
3needed for proof of a lost will under s. 856.17.
AB645-ASA1,72,6
5856.16 Self-proved will. A self-proving acknowledgment and affidavit
6included in a will are governed by s. 853.04.
AB645-ASA1,72,25
8857.01 Ownership in personal representative; management and
9control. Upon his or her letters being issued by the court, the personal
10representative succeeds to the interest of the decedent in all property of the decedent.
11The personal representative or surviving spouse may petition the court for an order
12determining the classification of property under ch. 766, and for other equitable
13relief necessary for management and control of the marital property during the
14administration of the estate. The court may make any decree under ch. 766,
15including a decree that the property be titled in accordance with its classification, to
16assist the personal representative or surviving spouse in managing and controlling
17the marital property and the decedent's property other than marital property during
18administration of the estate. During administration, the management and control
19rules under s. 766.51 apply to the property of a decedent spouse which is subject to
20administration and to the property of the surviving spouse. With regard to property
21subject to the election of the surviving spouse under s. 861.02
(1), the personal
22representative may manage and control the property while the property is subject
23to administration. The personal representative shall determine when, during
24administration, property shall be distributed to satisfy an election under s. 861.02
25(1).
AB645-ASA1,73,14
2857.015 Management and control of certain business property by
3holding spouse. A spouse who holds property described under s. 766.70 (3) (a), (b)
4or (d) which is not also held by the other spouse may direct in a will or other signed
5writing that the marital property interest of the nonholding spouse in such property
6and the election under s. 861.02 (1) against such property be satisfied as provided
7under
ss. s. 861.015
and 861.02 (2). The holding spouse shall identify in a will or
8other signed writing the property described under s. 766.70 (3) (a), (b) or (d) to which
9the directive applies. The signature of the holding spouse on a directive other than
10a will shall be acknowledged, attested or witnessed under s. 706.07. The estate of
11the holding spouse may not execute a directive under this section. If at the death of
12a spouse the surviving spouse is the holding spouse, the surviving spouse may
13execute a directive under this section if executed within 90 days after the decedent
14spouse's death.
AB645-ASA1,73,16
16858.01 (title)
Personal representative files; presumptions.
AB645-ASA1,74,6
20859.40 Creditor's action for property not inventoried. Whenever there
21is reason to believe that the estate of a decedent as set forth in the inventory may be
22insufficient to pay the decedent's debts, a creditor whose claim has been allowed may,
23on behalf of all, bring an action to reach and subject to sale any property
or interest
24therein not included in the inventory, which is liable for the payment of debts. The
25creditor's action shall not be brought to trial until the insufficiency of the estate in
1the hands of the personal representative is ascertained; if found likely that the assets
2may be insufficient, the action shall be brought to trial. If the action is tried, any
3property
or interest therein which ought to be subjected to the payment of the debts
4of the decedent shall be sold in the action and the net proceeds used to pay such debts
5and to reimburse the creditor for the reasonable expenses and attorney fees incurred
6by the creditor in the action as approved by the court.
AB645-ASA1,74,21
8859.41 Creditor's action for property fraudulently sold by decedent. 9Whenever there is reason to believe that the estate of a decedent as set forth in the
10inventory may be insufficient to pay the decedent's debts, and the decedent conveyed
11any property
or any interest therein with intent to defraud the decedent's creditors
12or to avoid any duty, or executed conveyances void as against creditors, any creditor
13whose claim has been allowed may, on behalf of all, bring an action to reach
any
14property and subject
it to sale
any property or interest therein. The creditor's action
15shall not be brought to trial until the insufficiency of the estate in the hands of the
16personal representative is ascertained; if found likely that the assets may be
17insufficient, the action shall be brought to trial. If the action is tried any property
18or interest therein which ought to be subjected to the payment of the debts of the
19decedent shall be sold in the action and the net proceeds used to pay such debts and
20to reimburse the creditor for the reasonable expenses and attorney fees incurred by
21the creditor in such action as approved by the court.
AB645-ASA1,75,623
861.015
(1) If following the death of a spouse property is subject to a directive
24under s. 857.015, the marital property interest of the nonholding spouse in the
25property shall be satisfied within one year after the decedent spouse's death from
1other property which is of equal clear market value at the time of satisfaction. Except
2as provided under sub. (3), if the
interests interest of the nonholding spouse under
3this section
and s. 861.02 (2) are is not satisfied within one year after the decedent
4spouse's death, this section does not apply and the nonholding spouse's marital
5property interest in the property subject to the directive continues as if the directive
6had not been made.
AB645-ASA1,75,128
861.015
(3) (intro.) If the
interests interest of the nonholding spouse under this
9section
and s. 861.02 (2) are is not satisfied within one year after the decedent
10spouse's death because the clear market value of the property subject to the directive
11has not been determined, the court having jurisdiction of the decedent spouse's
12estate shall
do either of the following:
AB645-ASA1,75,1614
861.015
(3) (a) Order that the
interests interest of the nonholding spouse shall
15be satisfied after the determination of clear market value, at a date specified by the
16court
; or.
AB645-ASA1,75,2118
861.015
(3) (b) Order that the
interests interest of the nonholding spouse shall
19be satisfied before the determination of clear market value based on an estimate of
20the clear market value, subject to any necessary adjustment upon final
21determination of clear market value.
AB645-ASA1, s. 189
22Section
189. Subchapter II (title) of chapter 861 [precedes 861.018] of the
23statutes is repealed and recreated to read:
AB645-ASA1,76,3
1Subchapter II
2
Elective share in
3
deferred marital property
AB645-ASA1,76,5
5861.018 Definitions. In this subchapter:
AB645-ASA1,76,7
6(1) "Augmented deferred marital property estate" means the property under
7s. 861.02 (2).
AB645-ASA1,76,9
8(2) "Deferred individual property" means any property that satisfies all of the
9following:
AB645-ASA1,76,1010
(a) Is not classified by ch. 766.
AB645-ASA1,76,1111
(b) Was brought to the marriage or acquired while the spouses were married.
AB645-ASA1,76,1312
(c) Would have been classified as individual property under ch. 766 if the
13property had been acquired when ch. 766 applied.
AB645-ASA1,76,18
14(3) "Nonadverse party" means a person who has a power relating to a trust or
15other property arrangement but who does not have a substantial beneficial interest
16that would be adversely affected by exercise or nonexercise of that power, except that
17"nonadverse party" does not include a person who has a general power of
18appointment over property, with respect to that property.
AB645-ASA1,76,20
19(4) "Power" includes a power to designate the beneficiary of a beneficiary
20designation.
AB645-ASA1,76,22
21(5) "Power of appointment" includes a power to designate the beneficiary of a
22beneficiary designation.
AB645-ASA1,77,3
23(6) "Presently exercisable general power of appointment" means a power of
24appointment under which, at the time in question, the decedent held a power to
25create a present or future interest in himself or herself, his or her creditors, his or
1her estate or creditors of his or her estate and a power to revoke or invade the
2principal of a trust or other property arrangement, whether or not the decedent had
3the capacity to exercise the power at the time.
AB645-ASA1,77,5
4(7) "Property" has the meaning given in s. 851.27 and includes values subject
5to a beneficiary designation.
AB645-ASA1,77,7
6(8) "Right to income" includes a right to payments under a commercial or
7private annuity, an annuity trust, a unitrust or a similar arrangement.
AB645-ASA1,77,8
8(9) "Transfer" includes, but is not limited to, the following:
AB645-ASA1,77,109
(a) An exercise or release of a presently exercisable general power of
10appointment held by the decedent.
AB645-ASA1,77,1211
(b) A lapse at death of a presently exercisable general power of appointment
12held by the decedent.
AB645-ASA1,77,1313
(c) An exercise, release or lapse of either of the following:
AB645-ASA1,77,1514
1. A general power of appointment that the decedent created in himself or
15herself.
AB645-ASA1,77,1716
2. A power under s. 861.03 (3) that the decedent conferred on a nonadverse
17party.
AB645-ASA1, s. 191
18Section
191. 861.02 of the statutes is repealed and recreated to read:
AB645-ASA1,77,21
19861.02 Deferred marital property elective share. (1) Amount. The
20surviving spouse has the right to elect an amount equal to no more than 50% of the
21augmented deferred marital property estate as determined under sub. (2).
AB645-ASA1,77,24
22(2) Augmented deferred marital property estate. (a) If the presumption of
23marital property under s. 766.31 (2) is rebutted as to the classification of an asset or
24a portion thereof, the asset or portion is presumed to be deferred marital property.
AB645-ASA1,78,5
1(b) The augmented deferred marital property estate is the total value of the
2deferred marital property of the spouses, irrespective of where the property was
3acquired or where the property is currently located, including real property located
4in another jurisdiction. It includes all types of property that fall within any of the
5following categories:
AB645-ASA1,78,76
1. Probate and nonprobate transfers of the decedent's deferred marital
7property under s. 861.03 (1) to (3).
AB645-ASA1,78,98
2. Decedent's gifts of deferred marital property made during the 2 years before
9the decedent's death under s. 861.03 (4).
AB645-ASA1,78,1010
3. Deferred marital property of the surviving spouse under s. 861.04.
AB645-ASA1,78,13
11(3) Calculation of property interests. Exclusions from the augmented
12deferred marital property estate, valuation of included property and reduction for
13expenses and claims are governed by s. 861.05.
AB645-ASA1,78,15
14(4) Satisfaction. Satisfaction of the augmented deferred marital property
15elective share is governed by ss. 861.06, 861.07 and 861.11.
AB645-ASA1,78,17
16(5) Proceedings. Proceedings for the election are governed by ss. 861.08 and
17861.09.
AB645-ASA1,78,19
18(6) Waiver. Waiver of the deferred marital property elective share is governed
19by s. 861.10.
AB645-ASA1,78,23
20(7) Applicability of election. (a) Unless the right has been waived under s.
21861.10 or other limitations of this subchapter apply, the surviving spouse is eligible
22to make the election if at the time of the decedent's death the decedent is domiciled
23in this state.
AB645-ASA1,79,3
1(b) If a decedent who is not domiciled in this state owns real property in this
2state, the right of the surviving spouse to take an elective share in that property is
3governed by s. 861.20.
AB645-ASA1,79,9
4(8) Special provision if surviving spouse caused death of decedent. If the
5surviving spouse unlawfully and intentionally kills the decedent, as determined
6under s. 854.14 (5), the estate of the decedent shall have the right to elect no more
7than 50% of the augmented deferred marital property estate as determined under
8sub. (2). The court shall construe the provisions of ss. 861.03 to 861.11 as necessary
9to achieve the intent of this paragraph.
AB645-ASA1, s. 192
10Section
192. 861.03 of the statutes is repealed and recreated to read:
AB645-ASA1,79,13
11861.03 Augmented deferred marital property estate: decedent's
12probate property and nonprobate or other property transfers. Subject to s.
13861.05, the augmented deferred marital property estate includes all of the following:
AB645-ASA1,79,15
14(1) Deferred marital property in decedent's probate estate. The value of
15deferred marital property in the decedent's probate estate.
AB645-ASA1,79,19
16(2) Deferred marital property passing nonprobate at decedent's death. The
17value of deferred marital property owned or owned in substance by the decedent
18immediately before death that passed outside probate at the decedent's death,
19including the following:
AB645-ASA1,79,2120
(a) The decedent's fractional interest in deferred marital property that was
21held by the decedent with the right of survivorship.
AB645-ASA1,79,2522
(b) The decedent's ownership interest in deferred marital property that was
23held by the decedent in a form payable or transferable on death, including deferred
24employment benefit plans, individual retirement accounts, annuities and transfers
25under s. 766.58 (3) (f), or in coownership with the right of survivorship.
AB645-ASA1,80,5
1(c) Deferred marital property in the form of proceeds of insurance on the life
2of the decedent, including accidental death benefits, that were payable at the
3decedent's death, if the decedent owned the insurance policy immediately before
4death or if the decedent alone and immediately before death held a presently
5exercisable general power of appointment over the policy or its proceeds.
AB645-ASA1,80,96
(d) Deferred marital property over which the decedent alone, immediately
7before death, held a presently exercisable general power of appointment, to the
8extent that the property passed at the decedent's death by exercise, release, lapse,
9default or otherwise.
AB645-ASA1,80,13
10(3) Deferred marital property transferred with retained rights or benefits. 11(a) The augmented deferred marital property estate includes the value of any
12deferred marital property transferred by the decedent in which the decedent
13retained rights or benefits, including but not limited to the following:
AB645-ASA1,80,1714
1. Deferred marital property in which the decedent retained the right to
15possession, use, enjoyment or income and that was irrevocably transferred, to the
16extent that the decedent's right terminated at or continued beyond the decedent's
17death.
AB645-ASA1,80,2318
2. Deferred marital property in which the decedent retained the right, either
19alone or in conjunction with any person, to designate the persons who shall possess
20or enjoy the property or the income therefrom, to control the time at which
21designated persons shall possess or enjoy the property or income therefrom, or to
22alter or amend the terms of the transfer of the property, to the extent that the
23decedent's right terminated at or continued beyond the decedent's death.
AB645-ASA1,81,524
3. Any transfer of deferred marital property, including transfer of an income
25interest, in which the decedent created a power of appointment, including the power
1to revoke or terminate the transfer or to consume, invade or dispose of the principal
2or income, if the power was exercisable by the decedent alone, by the decedent in
3conjunction with another person or by a nonadverse party, and if the power is for the
4benefit of the decedent, creditors of the decedent, the decedent's estate or creditors
5of the decedent's estate.
AB645-ASA1,81,126
(b) The amount included under par. (a) 3. is the value of the property subject
7to the power of appointment if the power of appointment is over property, the value
8of the property that produces or produced the income if the power of appointment is
9over income or the power valued at the higher amount if the power of appointment
10is over both income and property. The value is limited by the extent to which the
11power of appointment was exercisable at the decedent's death or the property passed
12at the decedent's death by exercise, release, lapse, default or otherwise.
AB645-ASA1,81,14
13(4) Deferred marital property transferred within 2
years prior to death.
14(a) In this subsection, termination occurs:
AB645-ASA1,81,1715
1. With respect to a right or interest in property, when the right or interest
16terminates by the terms of the governing instrument or when the decedent transfers
17or relinquishes the right or interest.
AB645-ASA1,81,1918
2. With respect to a power of appointment over property, when the power
19terminates by exercise, release, lapse, default or otherwise.
AB645-ASA1,81,2120
3. With respect to a power of appointment under sub. (2) (d), when the power
21terminates by exercise or release.
AB645-ASA1,81,2422
(b) The augmented deferred marital property estate includes the value of any
23deferred marital property transferred by the decedent within the 2 years
24immediately preceding the decedent's death, including the following:
AB645-ASA1,82,6
11. Deferred marital property that passed as a result of the termination of a right
2or interest in, or power of appointment over, property that would have been included
3in the augmented deferred marital property estate under subs. (2) (a), (b) or (d) or
4(3), if the right, interest or power had not terminated until the decedent's death. The
5amount included is the value of the property that would have been included if the
6property were valued at the time the right, interest or power terminated.
AB645-ASA1,82,117
2. Transfers by the decedent of or relating to the deferred marital property
8component of an insurance policy on the life of the decedent, if the proceeds would
9have been included under sub. (2) (c) had the transfer not occurred. The amount
10included is the value of the insurance proceeds to the extent that they were payable
11at the decedent's death.