Amendment AA3-ASA1-AB645

LRBa1311/1

PJK:jlg:ijs

1997 - 1998 LEGISLATURE

ASSEMBLY AMENDMENT 3, TO ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 645

January 20, 1998 - Offered by Representative Green.

AB645-ASA1-AA3,1,1 At the locations indicated, amend the substitute amendment as follows:

AB645-ASA1-AA3,1,2 1. Page 6, line 6: after that line insert:

AB645-ASA1-AA3,1,3 " Section 17m. 701.065 of the statutes is created to read:

AB645-ASA1-AA3,1,8 701.065 Debts of decedents. (1) Limitations on claims. (a) 1. A trustee who has a duty or power to pay the debts of a decedent may publish in the county in which the decedent resided, as a class 3 notice, under ch. 985, a deadline for filing claims with the trustee. The deadline shall be the date that is 4 months after the date of the first insertion of the notice.

AB645-ASA1-AA3,2,2 2. Except as provided in pars. (b) and (c), if the trustee satisfies the requirements for the publication of the notice under subd. 1., all claims, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, are barred against the trustee, the trust property and any recipient of trust property unless filed with the trustee on or before the date specified in the notice under subd. 1.

AB645-ASA1-AA3,2,4 (b) Notwithstanding par. (a) 2., a claim that is not filed on or before the date specified in the notice under par. (a) 1. is not barred if any of the following apply:

AB645-ASA1-AA3,2,10 1. The claim is a claim based on tort, on a marital property agreement that is subject to the time limitations under s. 766.58 (13) (b) or (c), on Wisconsin income, franchise, sales, withholding, gift or death taxes, or on unemployment compensation contributions due or benefits overpaid, a claim for funeral or administrative expenses, a claim of this state under s. 46.27 (7g), 49.496 or 49.682 or a claim of the United States.

AB645-ASA1-AA3,2,11 2. All of the following circumstances exist:

AB645-ASA1-AA3,2,15 a. On or before the date specified in the notice under par. (a) 1., the trustee knew, or in the exercise of reasonable diligence should have known, of the existence of the potential claim and of the identity and mailing address of the potential claimant.

AB645-ASA1-AA3,2,18 b. At least 30 days before the date specified in the notice under par. (a) 1., the trustee had not given notice to the potential claimant of the final day for filing his or her claim.

AB645-ASA1-AA3,2,21 c. At least 30 days before the date specified in the notice under par. (a) 1., the claimant did not have actual knowledge of the date on which the claim would be barred.

AB645-ASA1-AA3,3,2 (c) If an action is pending against a decedent at the time of his or her death and the action survives, the plaintiff in that action may serve a notice of substitution of party defendant on the trustee and file proof of service of notice in the court. Filing of proof of service on or before the deadline for filing a claim under par. (a) 1. gives the plaintiff the same rights against the trust as the filing of a claim. A judgment in any such action constitutes an adjudication for or against the trust.

AB645-ASA1-AA3,3,7 (2) Effect of statute of limitations. A trustee shall not pay a claim that was barred by a statute of limitations at the time of the decedent's death. A claim not barred by a statute of limitations at the time of the decedent's death shall not be barred thereafter by a statute of limitations if the claim is filed with the trustee on or before the deadline for filing a claim under sub. (1) (a) 1.

AB645-ASA1-AA3,3,10 (3) Claims of creditors without notice. (a) A claim not barred by sub. (1) (a) 2. because of the operation of sub. (1) (b) 2. may be enforced against trust property only as provided in this subsection.

AB645-ASA1-AA3,3,12 (b) The claimant shall file the claim with the trustee within one year after the decedent's death and within 30 days after the earlier of the following:

AB645-ASA1-AA3,3,14 1. The date that the trustee gives notice to the potential claimant of the deadline for filing a claim under sub. (1) (a) 1.

AB645-ASA1-AA3,3,16 2. The date that the claimant first acquires actual knowledge of the deadline for filing a claim under sub. (1) (a) 1.

AB645-ASA1-AA3,3,18 (c) The claimant shall have the burden of establishing by the greater weight of the credible evidence that all of the circumstances under sub. (1) (b) 2. existed.

AB645-ASA1-AA3,3,20 (d) This subsection does not extend the time for commencement of a claim beyond the time provided by any statute of limitations applicable to that claim.

AB645-ASA1-AA3,3,23 (4) Satisfaction of claim from other property. Failure of a claimant timely to file a claim as provided in this section does not bar the claimant from satisfying the claim, if not otherwise barred, from property other than trust property.".

AB645-ASA1-AA3,3,24 (End)