AB645: Bill Text

AB645,90,12 (3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse's probate estate or to the beneficiaries of other transfers.

AB645, s. 191 Section 191. 861.11 of the statutes is repealed and recreated to read:

AB645,90,19 861.11 Protection of payers and other 3rd parties. (1) Payer not liable until notice received. (a) Upon a beneficiary's request for payment, a payer or other 3rd party who has received satisfactory proof of the decedent's death and who has not received written notice that the surviving spouse or his or her representative intends to file a petition for the deferred marital property elective share or that a petition for the election has been filed is not liable for any of the following:

AB645,90,22 1. Causing any payment, item of property or other benefit included in the augmented deferred marital property estate under s. 861.03, to transfer directly to the beneficiary designated in a governing instrument.

AB645,90,24 2. Any other action in good faith reliance on the validity of a governing instrument.

AB645,91,3 (b) A payer or other 3rd party is liable for payments made or other actions taken after receipt of written notice of the intent to file a petition for the elective share or written notice that a petition for the elective share has been filed.

AB645,91,6 (2) Method of notice to payers. A written notice of the intent to file a petition for the election or written notice that a petition for the election has been filed shall fulfill one of the following requirements:

AB645,91,8 (a) Be mailed to the payer's or other 3rd party's main office or home by registered or certified mail, return receipt requested.

AB645,91,10 (b) Be served upon the payer or other 3rd party in the same manner as a summons in a civil action.

AB645,91,14 (3) Optional payment of proceeds to court. (a) Upon receipt of written notice of the intent to file, or the filing of, a petition for the election, a payer or other 3rd party may pay any amount owed or transfer or deposit any item of property to or with whichever of the following applies:

AB645,91,16 1. The court that has jurisdiction of the probate proceedings relating to the decedent's estate if proceedings have been commenced.

AB645,91,19 2. The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence, if no judicial proceeding has commenced.

AB645,91,22 (b) Payments, transfers or deposits made to the court discharge the payer or other 3rd party from all claims for amounts paid or the value of property transferred or deposited.

AB645,92,2 (c) The court shall hold the funds or items of property. After the court makes its determination under s. 861.08 (5), it shall order disbursement in accordance with that determination. The court shall order disbursement to the beneficiary designated in the governing instrument if either of the following conditions applies:

AB645,92,3 1. No petition is filed in the court within the specified time under s. 861.08 (1).

AB645,92,4 2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice.

AB645,92,9 (d) If payments have been made to the court or if property has been deposited with the court under par. (a), the court may order that all or part of the payments or property be paid to the beneficiary who is designated in the governing instrument, upon that beneficiary's petition to the court. Those payments shall be in an amount and subject to conditions consistent with this subchapter.

AB645, s. 192 Section 192. 861.13 of the statutes is repealed.

AB645, s. 193 Section 193. Subchapter III (title) of chapter 861 [precedes 861.17] of the statutes is created to read:

AB645,92,13 Chapter 861

AB645,92,16 Subchapter III Other rights, Allowances and exemptions

AB645, s. 194 Section 194. 861.21 of the statutes is created to read:

AB645,92,19 861.21 Assignment of home to surviving spouse. (1) Definitions. In this section:

AB645,92,20 (a) "Governing instrument" has the meaning given in s. 854.01.

AB645,93,3 (b) "Home" means any dwelling in which the decedent had an interest and that at the time of the decedent's death the surviving spouse occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse. "Home" includes a house, a mobile home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse and a building used in part for a dwelling and in part for commercial or business purposes. "Home" includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5).

AB645,93,10 (2) If marital property interest in home. Subject to subs. (4) and (5), if a married decedent has a marital property interest in a home, the decedent's entire interest in the home shall be assigned to the surviving spouse if the surviving spouse petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent's interest in the home to someone other than the surviving spouse. The surviving spouse shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.

AB645,93,15 (3) If interest in home in intestate estate. Subject to subs. (4) and (5), if the intestate estate includes an interest in a home, the decedent's entire interest shall be assigned to the surviving spouse if the surviving spouse petitions the court requesting such a distribution. The surviving spouse shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.

AB645,93,22 (4) Payment by surviving spouse. The court shall assign the interest in the home to the surviving spouse upon payment of the value of the interest that does not pass to the surviving spouse under intestacy or under the governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse shall have one year from the decedent's death to pay the value of the assigned interest.

AB645,94,4 (5) Severance of home from surrounding land. On petition of the surviving spouse or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home, the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land.

AB645, s. 195 Section 195. 861.31 (1) of the statutes is renumbered 861.31 (1m) and amended to read:

AB645,94,13 861.31 (1m) The court may, without notice or on such notice as the court directs, order payment by the personal representative or special administrator of an allowance as it determines necessary or appropriate for the support of the surviving spouse and any minor dependent children of the decedent during the administration of the estate. In making or denying the order the court shall consider the size of the probate estate, other resources available for support, existing standard of living, and any other factors it considers relevant.

AB645, s. 196 Section 196. 861.31 (1c) of the statutes is created to read:

AB645,94,15 861.31 (1c) In this section, "dependent child" means any of the following:

AB645,94,16 (a) A minor child of the decedent.

AB645,94,18 (b) An adult child of the decedent who was being supported by the decedent at the time of the decedent's death.

AB645, s. 197 Section 197. 861.31 (2) of the statutes is amended to read:

AB645,95,2 861.31 (2) The allowance may be made to the spouse for support of the spouse and any minor dependent children of the decedent, or separate allowances may be made to the spouse and to the minor dependent children of the decedent or their guardian if the minor children do not reside with the surviving spouse or if for any other reason, if any, if the court finds separate allowances advisable. If there is no surviving spouse the allowance may be made to the minor dependent children of the decedent or to their guardian, if any.

AB645, s. 198 Section 198. 861.31 (4) of the statutes is amended to read:

AB645,95,10 861.31 (4) The court may direct that the allowance be charged against income or principal, either as an advance or otherwise, but in no event may an allowance for support of minor dependent children of the decedent be charged against the income or principal interest of the surviving spouse. The court may direct that the allowance for support of the surviving spouse, not including any allowance for support of minor dependent children, be applied against any right of the surviving spouse to elect under ss. s. 861.02 (1) and 861.03.

AB645, s. 199 Section 199. 861.33 (title) of the statutes is amended to read:

AB645,95,12 861.33 (title) Selection of personalty by surviving spouse or children.

AB645, s. 200 Section 200. 861.33 (1) (a) (intro.) of the statutes is amended to read:

AB645,95,18 861.33 (1) (a) (intro.) Subject to this section, in addition to all allowances and distributions, the surviving spouse, or if there is no surviving spouse the decedent's children, may file with the court a written selection of the following personal property, which shall thereupon be transferred to the spouse or children by the personal representative:

AB645, s. 201 Section 201. 861.33 (1) (a) 4. of the statutes is amended to read:

AB645,95,21 861.33 (1) (a) 4. Other tangible personalty not used in trade, agriculture or other business, not to exceed $1,000 $3,000 in inventory value.

AB645, s. 202 Section 202. 861.33 (1) (b) of the statutes is amended to read:

AB645,96,3 861.33 (1) (b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or children may in every case select the normal household furniture, furnishings and appliances necessary to maintain the home. For this purpose antiques, family heirlooms and collections which are specifically bequeathed are not classifiable as normal household furniture or furnishings.

AB645, s. 203 Section 203. 861.33 (1) (c) of the statutes is created to read:

AB645,96,8 861.33 (1) (c) If there is no surviving spouse and the selection is being made by fewer than all of the decedent's children, the child or children selecting the property must have the written consent of all of the other children, or the selection must be approved by the court.

AB645, s. 204 Section 204. 861.33 (2) of the statutes is amended to read:

AB645,96,15 861.33 (2) If it appears that claims may not be paid in full, the court may upon petition of any creditor limit the transfer of personalty to the spouse or children under this section to items not exceeding $3,000 $5,000 in aggregate inventory value until such time as claims are paid in full or the court otherwise orders; or the court may require the spouse or children to retransfer property in excess of $3,000 $5,000 or, at the option of the spouse or children, pay the excess in value over this amount.

AB645, s. 205 Section 205. 861.33 (3) of the statutes is amended to read:

AB645,96,21 861.33 (3) The surviving spouse or children may select items not specifically bequeathed of the type specified under sub. (1) (a) 4. exceeding in value the $1,000 $3,000 limit or obtain the transfer of items exceeding the limit set by the court under sub. (2), by paying to the personal representative the excess of inventory value over the respective limit.

AB645, s. 206 Section 206. 861.33 (4) of the statutes is amended to read:

AB645,97,3 861.33 (4) The Subject to sub. (1) (c), the personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property selected by the spouse or children under this section. A person may not question the validity of the documents of transfer or refuse to accomplish the transfer on the grounds that the personal representative is also the surviving spouse or the only child of the decedent.

AB645, s. 207 Section 207. 861.35 (title) of the statutes is amended to read:

AB645,97,6 861.35 (title) Special allowance for support of spouse and support and education of minor dependent children.

AB645, s. 208 Section 208. 861.35 (1) of the statutes is renumbered 861.35 (1m), and 861.35 (1m) (intro.) and (b), as renumbered, are amended to read:

AB645,97,16 861.35 (1m) (intro.)  If the decedent is survived by a spouse or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, dependent child and for the support of the spouse. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse, the court also may allot directly to the minor any of the dependent children household furniture, furnishings and appliances. No allowance may be made under this section if any of the following apply:

AB645,97,19 (b) In the case of minor dependent children, if the surviving spouse is legally responsible for support and education and has ample means to provide them in addition to his or her own support.

AB645, s. 209 Section 209. 861.35 (1c) of the statutes is created to read:

AB645,97,22 861.35 (1c) In this section, "dependent child" has the meaning given in s. 861.31 (1c).

AB645, s. 210 Section 210. 861.35 (2) of the statutes is amended to read:

AB645,98,6 861.35 (2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If a child dies or reaches 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or the support and education of the minor any dependent child, any remaining property is to be distributed by the trustee as directed by the court in accordance with the terms of the decedent's will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent's estate.

AB645, s. 211 Section 211. 861.35 (3) of the statutes is renumbered 861.35 (3) (intro.) and amended to read:

AB645,98,10 861.35 (3) (intro.) In making an allowance under this section, the court shall consider the all of the following:

AB645,98,14 (a) The effect on claims under s. 859.25 and. The court shall balance the needs of the spouse or minor child dependent children against the nature of the creditors' claims in setting the amount allowed hereunder. The court shall also consider the under this section.

AB645,98,15 (b) The size of the estate, other.

AB645,98,16 (c) Other resources available for support, the.

AB645,98,17 (d) The existing standard of living and any.

AB645,98,18 (f) Any other factors it that the court considers relevant.

AB645,98,22 (4) The court may direct that the allowance to the surviving spouse, not including any allowance for the support and education of minor dependent children, be applied against any right of the surviving spouse to elect under ss. s. 861.02 (1) and 861.03.

AB645, s. 212 Section 212. 861.35 (3) (e) of the statutes is created to read:

AB645,98,25 861.35 (3) (e) Whether the provisions of a marital property agreement will create a hardship for the surviving spouse.

AB645, s. 213 Section 213. 861.41 (3) and (4) of the statutes are repealed.

AB645, s. 214 Section 214. 861.43 of the statutes is created to read:

AB645,99,8 861.43 Authority and powers of conservator, guardian or agent. A conservator, guardian or guardian ad litem of the spouse or of a child of the decedent, or an agent of the spouse or of a child of the decedent acting under a power of attorney, may on behalf of the spouse or child exercise any of the rights, apply for any of the allowances or make any of the selections that apply to the spouse or child under this subchapter.

AB645, s. 215 Section 215. 863.11 of the statutes is repealed and recreated to read:

AB645,99,11 863.11 Order in which assets appropriated; abatement. Shares of distributees abate in accordance with the rules under s. 854.18.

AB645, s. 216 Section 216. 863.13 of the statutes is repealed and recreated to read:

AB645,99,15 863.13 No exoneration of encumbered property. Specifically devised property that is subject to a mortgage or other encumbrance is subject to the rules under s. 854.05.

AB645, s. 217 Section 217. 863.37 (1) of the statutes is amended to read:

AB645,99,23 863.37 (1) If the laws, executive orders or regulations of the United States prohibit payment, conveyance, transfer, assignment or delivery of property or interest therein to a legatee, devisee, ward or beneficiary of an estate or trust, or to any person on his or her behalf, the court, after notice to the person under s. 879.03, may, by judgment or decree, authorize such disposition of the property or interest therein, as is or may be permissible under or in conformity with the laws, executive orders or regulations of the United States.

AB645, s. 218 Section 218. 880.32 of the statutes is amended to read:

AB645,100,15 880.32 Notes and mortgages of minor veterans. Notwithstanding any provision of this chapter or any other law to the contrary, any minor who served in the active armed forces of the United States at any time after August 27, 1940, and the husband or wife of such minor may execute in his or her own right, notes or mortgages, the payment of which is guaranteed or insured by the U.S. department of veterans affairs or the federal housing administrator under the servicemen's readjustment act of 1944 or the national housing act or any acts supplementary thereto or amendatory thereof. In connection with such transactions, such minors may sell, release or convey such mortgaged property or any interest therein, and litigate or settle controversies arising therefrom, including the execution of releases, deeds and other necessary papers or instruments. Such notes, mortgages, releases, deeds and other necessary papers or instruments when so executed shall not be subject to avoidance by such minor or the husband or wife of such minor upon either or both of them attaining the age of 18 because of the minority of either or both of them at the time of the execution thereof.

AB645, s. 219 Section 219. 880.695 (1) of the statutes is amended to read:

AB645,101,3 880.695 (1) A person nominated under s. 880.62 or designated under s. 880.65 as custodian may decline to serve by delivering a valid disclaimer under s. 701.27, in the case of a nontestamentary disclaimer, or under s. 853.40 if other than a nontestamentary disclaimer, 854.13 to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing and eligible to serve was nominated under s. 880.62, the person who made the nomination may nominate a substitute custodian under s. 880.62; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under s. 880.65 (1). The custodian so designated has the rights of a successor custodian.

AB645, s. 220 Section 220. 895.43 of the statutes is repealed and recreated to read:

AB645,101,7 895.43 Intentional killing by beneficiary of contract. The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are governed by s. 854.14.