AB645-ASA1,65,66
2. Residuary transfers or devises under the governing instrument.
AB645-ASA1,65,77
3. General transfers or devises under the governing instrument.
AB645-ASA1,65,88
4. Specific transfers or devises under the governing instrument.
AB645-ASA1,65,129
(b) For purposes of abatement, a general transfer or devise charged on any
10specific property or fund is a specific transfer to the extent of the value of the property
11on which it is charged, and upon the failure or insufficiency of the property on which
12it is charged, it is a general transfer to the extent of the failure or insufficiency.
AB645-ASA1,65,15
13(2) (a) Abatement within each classification is in proportion to the amount of
14property that each of the beneficiaries would have received if full distribution of the
15property had been made in accordance with the terms of the governing instrument.
AB645-ASA1,65,1816
(b) If the subject of a preferred transfer is sold or used incident to
17administration of an estate, abatement shall be achieved by appropriate
18adjustments in, or contribution from, other interests in the remaining assets.
AB645-ASA1,65,22
19(3) If the governing instrument expresses an order of abatement, or if the
20decedent's estate plan or the express or implied purpose of the transfer would be
21defeated by the order of abatement under sub. (1), the shares of the distributees
22abate as necessary to give effect to the intention of the transferor.
AB645-ASA1,66,2
23854.19 Penalty clause for contest. A provision in a governing instrument
24that prescribes a penalty against an interested person for contesting the governing
25instrument or instituting other proceedings relating to the governing instrument
1may not be enforced if the court determines that the interested person had probable
2cause for instituting the proceedings.
AB645-ASA1,66,3
3854.20 Status of adopted persons.
AB645-ASA1,66,7
4(3) Sequential adoption. Subject to sub. (4), if an adoptive parent dies or his
5or her parental rights are terminated in a legal proceeding and the adopted child is
6subsequently adopted by another person, the former adoptive parent is considered
7to be a birth parent for purposes of this section.
AB645-ASA1,66,9
8(4) Applicability. Subsections (1), (2) and (3) apply only if at least one of the
9following applies:
AB645-ASA1,66,1010
(a) The decedent or transferor is the adoptive parent or adopted child.
AB645-ASA1,66,1111
(b) The adopted person was a minor at the time of adoption.
AB645-ASA1,66,1312
(c) The adopted person was raised as a member of the household by the adoptive
13parent from the child's 15th birthday or before.
AB645-ASA1,66,16
14(5) Contrary intent. This section does not apply if the transfer is made under
15a governing instrument and there is a finding of contrary intent of the person who
16executed the instrument. Extrinsic evidence may be used to construe that intent.
AB645-ASA1,66,23
17854.21 Persons included in family groups or classes. (1) Adopted
18persons. (a) Except as provided in par. (b) or sub. (7), a gift of property by a governing
19instrument to a class of persons described as issue, lawful issue, children,
20grandchildren, descendants, heirs, heirs of the body, next of kin, distributees or the
21like includes a person adopted by a person whose birth child would be a member of
22the class, and issue of the adopted person, if the conditions for membership in the
23class are otherwise satisfied and any of the following applies:
AB645-ASA1,66,2424
1. The transferor is the adoptive parent or adopted child.
AB645-ASA1,66,2525
2. The adopted person was a minor at the time of adoption.
AB645-ASA1,67,2
13. The adopted person was raised as a member of the household by the adoptive
2parent from the child's 15th birthday or before.
AB645-ASA1,67,53
(b) Except as provided in sub. (7), a gift under par. (a) excludes a birth child and
4his or her issue otherwise within the class if the birth child has been adopted and
5would cease to be a child of the birth parent under s. 854.20 (2).
AB645-ASA1,67,8
6(2) Individuals born to unmarried parents. (a) Subject to par. (b) and sub. (7),
7individuals born to unmarried parents are included in class gifts and other terms of
8relationship in accordance with s. 852.05.
AB645-ASA1,67,149
(b) In addition to the requirements of par. (a) and subject to the provisions of
10sub. (7), in construing a disposition by a transferor who is not the birth parent, an
11individual born to unmarried parents is not considered to be the child of a birth
12parent unless that individual lived while a minor as a regular member of the
13household of that birth parent or of that birth parent's parent, brother, sister, spouse
14or surviving spouse.
AB645-ASA1,67,17
15(3) Relatives by marriage. Subject to sub. (7), terms of family relationship in
16statutes or governing instruments that do not differentiate between relationships by
17blood and relationships by marriage are construed to exclude relatives by marriage.
AB645-ASA1,67,21
18(4) Relatives of the half-blood. Subject to sub. (7), terms of family
19relationship in statutes or governing instruments that do not differentiate between
20relationships by the half-blood and relationships by the full-blood are construed to
21include both types of relationships.
AB645-ASA1,68,2
22(5) Posthumous issue. Subject to sub. (7), if a statute or governing instrument
23transfers an interest to a group of persons described as a class, such as "issue",
24"children", "nephews and nieces" or any other class, a person conceived at the time
25the membership in the class is determined and subsequently born alive is entitled
1to take as a member of the class if that person otherwise satisfies the conditions for
2class membership and survives at least 120 hours past birth.
AB645-ASA1,68,6
3(6) Person related through 2 lines. Subject to sub. (7), a person who is eligible
4to be a transferee under a statute or governing instrument through 2 lines of
5relationship is limited to one share, based on the relationship that entitles the person
6to the larger share.
AB645-ASA1,68,10
7(7) Contrary intent. This section does not apply if the transfer is made under
8a governing instrument and there is a finding of contrary intent of the person who
9executed the governing instrument. Extrinsic evidence may be used to construe that
10intent.
AB645-ASA1,68,21
11854.22 Form of distribution for transfers to family groups or classes.
12(1) Interests in heirs, next of kin and the like. Subject to sub. (4), if a statute or
13governing instrument specifies that a present or future interest is to be created in
14a designated individual's "heirs", "heirs at law", "next of kin", "relatives", "family" or
15a term that has a similar meaning, the property passes to the persons, including the
16state, to whom it would pass and in the shares in which it would pass under the laws
17of intestacy of the designated individual's domicile, as if the designated individual
18had died immediately before the transfer was to take effect in possession or
19enjoyment. If the designated individual's surviving spouse is living and remarried
20when the transfer is to take effect in possession or enjoyment, the surviving spouse
21is not an heir of the designated individual.
AB645-ASA1,69,3
22(2) Transfers to descendants, issue and the like. Subject to sub. (4), if a
23statute or governing instrument creates a class gift in favor of a designated
24individual's "descendants", "issue" or "heirs of the body" the property is distributed
25among the class members who are living when the interest is to take effect in
1possession or enjoyment in the shares that they would receive under the laws of
2intestacy of the designated individual's domicile, as if the designated individual had
3then died owning the subject matter of the class gift.
AB645-ASA1,69,9
4(3) Doctrine of worthier title abolished. The doctrine of worthier title is
5abolished as a rule of law and as a rule of construction. Language in a governing
6instrument describing the beneficiaries of a disposition as the transferor's "heirs",
7"heirs at law", "next of kin", "distributees", "relatives" or "family", or a term that has
8a similar meaning, does not create or presumptively create a reversionary interest
9in the transferor.
AB645-ASA1,69,13
10(4) Contrary intent. This section does not apply if the transfer is made under
11a governing instrument and there is a finding of contrary intent of the person who
12executed the governing instrument. Extrinsic evidence may be used to construe that
13intent.
AB645-ASA1,69,22
14854.23 Protection of payers and other 3rd parties. (1)
Liability depends
15on notice. (a) A payer or other 3rd party is not liable for having transferred property
16to a beneficiary designated in a governing instrument who, under this chapter, is not
17entitled to the property, or for having taken any other action in good faith reliance
18on the beneficiary's apparent entitlement under the terms of the governing
19instrument, before the payer or other 3rd party received written notice of a claimed
20lack of entitlement under this chapter. However, a payer or other 3rd party is liable
21for a payment made or other action taken after the payer or other 3rd party received
22written notice of a claimed lack of entitlement under this chapter.
AB645-ASA1,70,323
(b) Severance of a joint interest under the provisions of this chapter does not
24affect any 3rd-party interest in property acquired for value and in good faith reliance
25on an apparent title by survivorship, unless a document declaring the severance has
1been noted, registered, filed or recorded in records appropriate to the kind and
2location of the property that are relied upon, in the ordinary course of transactions
3involving such property, as evidence of ownership.
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: