2001 Wisconsin Act 102

877.36 Debts, order of payment. (intro.) When the The next of kin, legatees, heirs, or devisees who are liable for demands against the decedent as prescribed in under this chapter they shall be given preference in the payment of the same and shall be liable therefor for demands against the estate in the following order:

102,122 Section 122. 777.38 of the statutes is renumbered 877.38 and amended to read:

877.38 Defenses. The If the decedent's next of kin, legatees, heirs, and devisees may show that there are unsatisfied debts of the decedent that are of a class prior class unsatisfied or that there are unpaid debts of the same class with that to or the same as the class of the debt on which the action is brought; and if it appear that the value of the personal property delivered to them or of the real estate descended or devised to them does not exceed the debts of a prior class prior to that of the debt on which the action is brought, judgment shall be rendered in their favor.

102,123 Section 123. 777.39 of the statutes is renumbered 877.39 and amended to read:

877.39 Extent of liability. If the personal property delivered to such the decedent's next of kin or legatee, legatees or if the real estate descended or devised to such the decedent's heirs or devisees, exceed exceeds the amount of debts which that are entitled to a preference over the debt for which the an action is brought, judgment shall be rendered against them the next of kin, legatees, heirs, or devisees only for such a sum as shall be that is a just proportion to the other debts of the same class with that on which the action is brought.

102,124 Section 124. 777.40 of the statutes is renumbered 877.40 and amended to read:

877.40 Preferred debts deducted. If any debt of the decedent that is of the same or a prior class to that on which the an action is brought, or of the same class, shall have has been paid by any next of kin, legatees, heirs or devisees they legatee, heir, or devisee, that person may give evidence of such the payment, and the amount of debts so paid shall be estimated in ascertaining the amount to be recovered in the same manner as if such those paid debts were outstanding and unpaid as prescribed in ss. 777.38 877.38 and 777.39 877.39.

102,125 Section 125. 777.41 of the statutes is renumbered 877.41 (intro.) and amended to read:

877.41 Rights and liabilities of posthumous child and witness to will. (intro.) A child born after the making of a will who is entitled to succeed to a portion of any of the real or personal testator's property or both of the testator, or a witness to a will who is entitled to recover any portion of such the testator's property from the legatees or devisees, shall have:

(1) Have the same rights and remedies to compel a distribution of the personal property and partition of the real estate or to recover of from the legatees or devisees such the portion of the property as that belongs to him or her, or to as any other person entitled to any part of the estate;

(2) Have the same rights and remedies to compel a contribution from other persons interested in the estate, or to gain possession of the property, as any other persons who are person entitled to any part of such the estate; and shall be

(3) Be equally liable to the creditors of the decedent under this chapter as any other person entitled to any part of the estate.

102,126 Section 126. 777.42 of the statutes is renumbered 877.42 and amended to read:

877.42 Estate of deceased heir liable. The estate of any heir, devisee, legatee, or next of kin of a decedent who dies before paying his or her just share of the decedent's debts is liable therefor for his or her share of the decedent's debts, as for a personal debt, to the same extent to which that he or she would have been liable if living.

102,127 Section 127. 803.01 (2) of the statutes is amended to read:

803.01 (2) Representatives. A personal representative, executor, administrator, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.

102,128 Section 128. 806.04 (4) (intro.) of the statutes is amended to read:

806.04 (4) Representatives, etc. (intro.) Any person interested as or through a personal representative, executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, mental incompetent, or insolvent, may have a declaration of rights or legal relations in respect thereto to the administration of the trust or estate for any of the following purposes:

102,129 Section 129. 806.04 (4) (b) of the statutes is amended to read:

806.04 (4) (b) To direct the personal representatives , executors, administrators or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

102,130 Section 130. 813.026 of the statutes is amended to read:

813.026 Remedy against heirs and legatees; temporary injunction; receivership; judgment. In an action, in a court of record, for damages founded upon contract or upon a judgment, when it appears that the defendant is interested, as heir, legatee, or devisee, in the estate of a decedent and that the defendant's property that is liable to execution is probably insufficient to satisfy the plaintiff's claim for damages, the defendant may be enjoined by the court, pending the action, from assigning or otherwise disposing of the defendant's interest in such the estate;, and a receiver therefor for the defendant's interest may be appointed. The judgment may compel the defendant to transfer sufficient of the defendant's interest to satisfy the judgment or may adjudge such the transfer. The remedy given by this section is in addition to that given by proceedings supplementary to execution under ch. 816. If a receiver is appointed, he or she shall give prompt notice thereof of the appointment to the administrator or executor personal representative.

102,131 Section 131. 814.14 of the statutes is renumbered 814.14 (1) (a) and amended to read:

814.14 (1) (a) In Except as provided in par. (b) or unless otherwise specifically provided in any action or proceeding prosecuted or defended in any court in Wisconsin this state by an executor, administrator a personal representative, guardian ad litem, trustee of an express trust, general guardian or a person expressly authorized by statute, unless otherwise specially provided, costs shall may be recovered as in an action by and or against a person prosecuting or defending in the person's own right; but such costs.

(b) Except in cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, costs recovered under par. (a) shall be chargeable only upon or collected of from the estate, fund, or party represented, unless. In cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, the court shall direct that the same to be costs recovered under par. (a) shall be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action, proceeding or defense.

(2) In addition to other costs, all actions or proceedings in which any receiver, assignee, guardian, guardian ad litem, executor, administrator, or other fiduciary may be entitled to recover costs, the fiduciary may recover in addition to other costs, such any sum that the fiduciary paid to a company, authorized by the laws of this state, so to do act as the fiduciary's surety, for becoming the fiduciary's surety upon any bond or other obligation given by the fiduciary in the fiduciary's representative capacity, in such the action or proceeding, pursuant to law or the order of any court or judge, as may be allowed by the court or judge, in which or before whom the fiduciary accounts, not exceeding the lesser of 2% per year on the amount secured by such the obligation , or any less the actual amount which the fiduciary may have paid any such to the company for such purpose.

102,132 Section 132. 814.28 (1) of the statutes is amended to read:

814.28 (1) Defendant may require. Except as otherwise provided by s. 814.29, the defendant may require the plaintiffs to file security for costs if the plaintiffs are all nonresidents; or are foreign corporations, nonresident executors, administrators personal representatives, guardians, trustees, or receivers; or are trustees or assignees of any debtor; or are imprisoned for crime for terms less than life; or shall take issue upon the answer of the garnishee.

102,133 Section 133. 815.15 of the statutes is amended to read:

815.15 Execution after judgment creditor's death. If the judgment creditor dies before satisfaction of the judgment, an execution may be issued by the judgment creditor's attorney of record in the name of such the decedent or in the name of the judgment creditor's executor or administrator personal representative. Before an execution shall issue in the name of an executor or administrator the executor or administrator a personal representative, the personal representative shall file with the clerk a copy of his or her the letters testamentary or of other letters authorizing the administration, and of the decedent's estate, which the clerk shall file such papers with the other papers in the action or proceeding and. The clerk shall also enter at the foot of the judgment, in the judgment record, the fact of the death of such the judgment creditor, and the name and date of appointment of such executor or administrator the personal representative. The moneys collected thereon on the judgment shall be paid to the executors or administrators of such creditor; judgment creditor's personal representative, but if there be none then is no personal representative, the moneys so collected on the judgment shall be paid to the clerk of the court.

102,134 Section 134. 815.53 (3) of the statutes is amended to read:

815.53 (3) A certified copy of the creditor's letters of administration or letters testamentary or other letters authorizing the administration of the decedent's estate, in the case of an administrator or executor a personal representative.

102,135 Section 135. 815.56 of the statutes is amended to read:

815.56 Sheriff's deed; grantee if purchaser dead. In case If the person who would be entitled to a deed of real estate sold on execution dies before the delivery of that deed, the sheriff shall execute a deed to the person's executors or administrators. The decedent's personal representative who shall either hold the real estate so conveyed shall be held in trust for the use of the heirs or devisees of the deceased person decedent, subject to the surviving spouse's right to elect under s. 861.02 (1), but may be sold or sell the real estate for the payment of debts in the same manner as lands of which the person died seized owned by the decedent.

102,136 Section 136. 847.05 of the statutes is amended to read:

847.05 Actions between cotenants. One joint tenant or tenant in common and, or his or her executors or administrators personal representative, may maintain an action for money had and received against the tenant's a cotenant for receiving more than the cotenant's just proportion of the rents or profits of the estate owned by them as joint tenants or tenants in common.

Note: As a personal representative can act for a person only after the person's death, "and" is replaced with "or."

102,137 Section 137. 847.07 of the statutes is renumbered 847.07 (1) (intro.) and amended to read:

847.07 (1) (intro.) The circuit court of any county in which a conveyance of real estate has been recorded may make an order correcting the description in the conveyances conveyance on proof being made to the satisfaction of the court that the any of the following applies:

(a) The conveyance contains an erroneous description, not intended by the parties thereto; or if the to the conveyance.

(b) The description is ambiguous and does not clearly or fully describe the premises intended to be conveyed, if the.

(c) The grantor therein of the conveyance is dead, a nonresident of the state, a corporation which that has ceased to exist or an administrator, executor, or a personal representative, guardian, trustee, or other person authorized to convey and who has been discharged from his or her trust and the person to whom it was made, grantee or his or her heirs, legal representatives, or assigns have been in the quiet, undisturbed, and peaceable possession of the premises intended to be conveyed from the date of the conveyance.

(2) This section does not prevent an action for the reformation of any conveyance, and if in any doubt, the court shall direct the action to be brought.

102,138 Section 138. 853.07 (3) (a) of the statutes is amended to read:

853.07 (3) (a) A provision for employment as executor personal representative or trustee or in some other capacity after death of the testator and a provision for compensation at a rate or in an amount not greater than that usual for the services to be performed;

102,139 Section 139. 854.14 (2) (a) 3. of the statutes is amended to read:

854.14 (2) (a) 3. Nominates or appoints the killer to serve in any fiduciary or representative capacity, including personal representative, executor, trustee, or agent.

102,140 Section 140. 856.03 of the statutes is amended to read:

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 person named in the will to act as personal representative, otherwise to some person interested in the provisions thereof of the will. If probate jurisdiction belongs to any other court, the will shall be delivered to that court.

102,141 Section 141. 856.05 (1) of the statutes is amended to read:

856.05 (1) Duty and liability of person with custody. Every Any person, other than the executor a person named in the will to act as personal representative, 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 to act as personal representative. Every Any person named as executor in a will to act as personal representative shall, within 30 days after he or she has knowledge that he or she is named executor to act as personal representative, 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 Any 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.

102,142 Section 142. 856.05 (3) of the statutes is amended to read:

856.05 (3) Penalty. Any person who with intent to injure or defraud any person interested therein in a will 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 person named therein shall be punished by the court by imprisonment in the will to act as personal representative shall be fined not more than $500 or imprisoned in the county jail for not more than one year or by fine not to exceed $500 or both.

Note: Conforms penalty provision to current style.

102,143 Section 143. 856.07 (1) of the statutes is amended to read:

856.07 (1) Generally. Petition for administration of the estate of a decedent may be made by any executor person named in the will to act as personal representative or by any person interested.

102,144 Section 144. 856.09 (4) of the statutes is amended to read:

856.09 (4) The name and post-office address of the person named as executor in the will to act as personal representative;

102,145 Section 145. 856.21 (1) of the statutes is amended to read:

856.21 (1) The executor person named in the will to act as personal representative.

102,146 Section 146. 856.23 (1) (intro.) and (e) of the statutes are amended to read:

856.23 (1) (intro.) A person including the executor person named in the will to act as personal representative is not entitled to receive letters if the person is any of the following:

(e) A person whom the court deems considers unsuitable for good cause shown.

102,147 Section 147. 868.03 (1) (a) of the statutes is amended to read:

868.03 (1) (a) "Representative" means an executor, administrator a personal representative, testamentary trustee, guardian, or other fiduciary of the estate of a decedent or a ward duly appointed by a court and qualified. It includes any corporation so appointed, regardless of whether the corporation is eligible to act under the law of this state. This section does not change the powers or duties of a testamentary trustee under the nonstatutory law or under the terms of a trust.

102,148 Section 148. 879.35 of the statutes is amended to read:

879.35 Costs in will contests. Costs may be awarded out of the estate to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as an executor therein personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as an executor personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.

102,149 Section 149. 879.37 of the statutes is amended to read:

879.37 Attorney fees in contests. Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as an executor therein personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as an executor personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.

102,150 Section 150. 879.59 (2) of the statutes is amended to read:

879.59 (2) Between testate and intestate distributees; parties. The court also may authorize the person named to act as executor personal representative in one or more instruments purporting to be the last will and testament of a person deceased decedent, or the petitioners for administration with the will or wills annexed, to adjust by compromise any controversy that may arise between the persons claiming as devisees or legatees under the will or wills and the persons entitled to or claiming the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, to which agreement or compromise the persons named as executors to act as personal representatives or the petitioners for administration with will annexed, those claiming as devisees or legatees and those claiming the estate as intestate shall be parties, provided that persons named to act as executors personal representatives in any instrument who have renounced or shall renounce such executorship the right to act as personal representative and any person whose interest in the estate is unaffected by the proposed compromise shall not be required to be parties to the compromise.

102,151 Section 151. 880.295 (1) of the statutes is renumbered 880.295 (1) (a) and amended to read:

880.295 (1) (a) When a patient in any state or county hospital or mental hospital or in any state institution for the mentally deficient, or a resident of the county home or infirmary, appears in need of a guardian, and does not have a guardian, the department of health and family services by its collection and deportation counsel, or the county corporation counsel, may apply to the circuit court of the county in which the patient resided at the time of commitment or to the circuit court of the county in which the facility in which the patient resides is located for the appointment of a guardian of the person and estate, or either, or for the appointment of a conservator of the estate, and the court, upon the application, may appoint the guardian or conservator in the manner provided for the appointment of guardians under ss. 880.08 (1) and 880.33 or for the appointment of conservators under s. 880.31.

(b) If application is made by a corporation counsel, a copy of the petition made to the court shall be filed with the department of health and family services.

(c) If application is made by a corporation counsel for appointment of a guardian of the estate of the patient or resident, or by the patient or resident for appointment of a conservator of the patient's or resident's estate, the court may designate the county as guardian or conservator if the court finds that no relative or friend is available to serve as guardian or conservator and the county is not required to make or file any oath or give any bond or security, except in the discretion of the court making the appointment, as similarly provided under s. 223.03 (8) (6) (a) in the case of the appointment of a trust company bank corporation.

(d) The court may place any limitations upon the guardianship or conservatorship as it deems considers to be in the best interest of the patient.

(e) Before any county employee administers the funds of a person's estate of for which the county has been appointed guardian or conservator, the employee must be designated as securities agent in the classified service of the county, and the employee's designation as securities agent shall appear on all court papers which that the security agent signs in the name of the county as guardian or conservator. The securities agent, before entering upon the duties, shall also furnish an official bond in such the amount and with such the sureties as that the county board determines, subject to the prior approval of the amount by the court assigned to exercise jurisdiction. The bond shall be filed in the office of the register in probate, and a duplicate original thereof of the bond filed in the office of the county clerk.

(f) A conservatorship under this section shall be terminated by the court upon discharge of the patient unless application for continued conservatorship is made. The superintendent or director of the facility shall notify the court of the discharge of a patient for whom a guardian or conservator has been appointed under this subsection.

102,152 Section 152. 891.32 of the statutes is amended to read:

891.32 Allegation as to executor, guardian, etc representative capacity. Whenever a plaintiff shall sue sues as an executor, administrator a personal representative, guardian, or trustee and shall allege alleges in the complaint appointment as such, to that position and, if appointed the appointment was made in another state or a foreign country, the filing or recording of the authenticated copy of the appointment, as required by the laws of this state, such those allegations shall be taken as true unless specifically denied by the defendant by in the defendant's answer.

102,153 Section 153. 893.22 of the statutes is amended to read:

893.22 Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person's representatives after the expiration of that time and within one year from the person's death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced after the expiration of that time and within one year after the issuing, within this state, of letters testamentary or of other letters authorizing the administration of the decedent's estate.

102,154 Section 154. 893.46 of the statutes is amended to read:

893.46 Acknowledgment, who not bound by. If there are 2 or more joint contractors or joint administrators personal representatives of any contractor , no such joint contractor, executor or administrator joint personal representative shall lose the benefit of this chapter so as to be chargeable by reason only of any acknowledgment or promise made by any other of them.

102,155 Section 155. 893.47 of the statutes is amended to read:

893.47 Actions against parties jointly liable. In actions commenced against 2 or more joint contractors or joint executors or administrators personal representatives of any contractors, if it shall appear, on the trial or otherwise, that the plaintiff is barred by this chapter as to one or more of the defendants, but is entitled to recover against any other or others of them, by virtue of a new acknowledgment or promise, or otherwise, judgment shall be given for the plaintiff as to any of the defendants against whom the plaintiff is entitled to recover and for the other defendant or defendants against the plaintiff.

102,156 Section 156. 893.49 of the statutes is amended to read:

893.49 Payment by one not to affect others. If there are 2 or more joint contractors or joint executors or administrators personal representatives of any contractor, no one of them shall lose the benefit of this chapter, so as to be chargeable, by reason only of any payment made by any other of them.

102,157 Section 157. 895.02 of the statutes is amended to read: