AB1038: Bill Text

AB1038, s. 217 Section 217. 861.33 (2) of the statutes is amended to read:

AB1038,65,3 861.33 (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 $5,000 in aggregate inventory value until such time as the 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 $5,000 or, at the option of the spouse or children, pay the excess in value over this amount.

AB1038, s. 218 Section 218. 861.33 (3) of the statutes is amended to read:

AB1038,65,9 861.33 (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 $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.

AB1038, s. 219 Section 219. 861.33 (4) of the statutes is amended to read:

AB1038,65,16 861.33 (4) Subject to sub. (1) (c), the 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 selects 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.

AB1038, s. 220 Section 220. 861.35 (title) of the statutes is amended to read:

AB1038,65,19 861.35 (title) Special allowance for support of spouse and support and education of dependent minor children.

AB1038, s. 221 Section 221. 861.35 (1c) of the statutes is repealed.

AB1038, s. 222 Section 222. 861.35 (1m) (intro.) of the statutes is amended to read:

AB1038,66,4 861.35 (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 dependent minor child until he or she reaches a specified age, not to exceed 18, 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 any of the dependent the minor children household furniture, furnishings, and appliances. No The court may not order an allowance may be made under this section if any of the following apply applies:

AB1038, s. 223 Section 223. 861.35 (1m) (a) of the statutes is amended to read:

AB1038,66,9 861.35 (1m) (a) The decedent has amply provided for each minor child and for the spouse by the terms of his or her will and the estate is sufficient to carry out the terms after payment of all debts and expenses transfer of probate or nonprobate assets, or support and education have been provided for by any other means.

AB1038, s. 224 Section 224. 861.35 (1m) (b) of the statutes is amended to read:

AB1038,66,13 861.35 (1m) (b) In the case of dependent minor 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.

AB1038, s. 225 Section 225. 861.35 (1m) (c) of the statutes is amended to read:

AB1038,66,16 861.35 (1m) (c) In the case of the surviving spouse, if he or she has ample means to provide for his or her support.

AB1038, s. 226 Section 226. 861.35 (2) of the statutes is amended to read:

AB1038,66,25 861.35 (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 the age of 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 any dependent the minor child, any remaining property is to be distributed by the trustee as directed by the court orders 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.

AB1038, s. 227 Section 227. 861.35 (3) (a) of the statutes is amended to read:

AB1038,67,4 861.35 (3) (a) The effect on claims under s. 859.25. The court shall balance the needs of the spouse or dependent minor children against the nature of the creditors' claims in setting the amount allowed under this section.

AB1038, s. 228 Section 228. 861.35 (4) (intro.) of the statutes is amended to read:

AB1038,67,8 861.35 (4) (intro.) The court may direct order that the allowance to the surviving spouse, not including any allowance for the support and education of dependent minor children, be applied in satisfaction of any of the following:

AB1038, s. 229 Section 229. 861.35 (4) (a) of the statutes is amended to read:

AB1038,67,11 861.35 (4) (a) Any entitlement of the surviving spouse under s. 853.11 (2) 853.12.

AB1038, s. 230 Section 230. 863.08 of the statutes is amended to read:

AB1038,67,16 863.08 Exchange by distributee and surviving spouse. In its final judgment or other order, the court shall assign items to the surviving spouse and distributee to conform with the exchange under s. 857.03 (2) 766.31 (3) (b) to the extent that the court approved the exchange.

AB1038, s. 231 Section 231. 863.15 of the statutes is amended to read:

AB1038,67,24 863.15 Right of retention Debts to estate. When If a distributee of an estate is indebted to the estate, the amount of the indebtedness if due, or the present worth of the indebtedness, if not due, shall be treated as an offset by the personal representative against property of the estate to which the distributee is entitled. In contesting the offset the distributee shall have the benefit of any defense which would be available to the distributee in a direct proceeding by the personal representative for the recovery treatment of the debt is governed by s. 854.12.

AB1038, s. 232 Section 232. 865.07 (1) (d) of the statutes is amended to read:

AB1038,68,5 865.07 (1) (d) The decedent died intestate or testate, and, if testate, whether the original will is in the possession of the court or accompanies the application and, contains an attestation clause showing compliance with the requirements of execution under s. 853.03 or 853.05 or includes an affidavit in substantially the form under s. 853.04 (1) or (2), and does not expressly prohibit informal administration;

AB1038, s. 233 Section 233. 867.01 (3) (am) 2. of the statutes is amended to read:

AB1038,68,13 867.01 (3) (am) 2. A detailed statement of all property in which the decedent had an interest, property over which the decedent had a power of appointment, benefits payable on the decedent's death under annuities or under a retirement plan, life insurance, joint and life tenancies, gifts made in contemplation of death or taking effect upon death or made within 2 years prior to death and any other property that may be subject to death taxes as a result of the decedent's death subject to administration, including any encumbrance, lien, or other charge upon each item.

AB1038, s. 234 Section 234. 867.02 (2) (am) 3. of the statutes is amended to read:

AB1038,68,21 867.02 (2) (am) 3. A detailed statement of all property in which the decedent had an interest, property over which the decedent had a power of appointment, benefits payable on decedent's death under annuities or under a retirement plan, life insurance, joint and life tenancies, gifts made in contemplation of death or taking effect upon death or made within 2 years prior to death and any other property which may be subject to death tax as a result of decedent's death subject to administration, including any encumbrance, lien, or other charge upon each item.

AB1038, s. 235 Section 235. 867.03 (1g) (intro.) of the statutes is amended to read:

AB1038,69,9 867.03 (1g) Generally. (intro.) When a decedent leaves solely owned property subject to administration in this state which does not exceed $20,000 $50,000 in value, any heir of the decedent, trustee of a revocable trust created by the decedent, or person who was guardian of the decedent at the time of the decedent's death may collect any money due the decedent, receive the property of the decedent , and have any evidence of interest, obligation to, or right of the decedent transferred to the affiant if the heir, trustee, or guardian provides to the person owing the money, having custody of the property, or acting as registrar or transfer agent of the evidences of interest, obligation to, or right, or, if the property is an interest in or lien on real property, provides to the register of deeds preliminary to the recording required under sub. (2m), proof of prior mailed notice under sub. (1m) if applicable and an affidavit in duplicate showing all of the following:

AB1038, s. 236 Section 236. 867.03 (1g) (b) of the statutes is amended to read:

AB1038,69,12 867.03 (1g) (b) The total value of the decedent's property subject to administration in this state at the date of decedent's death.

AB1038, s. 237 Section 237. 867.03 (1m) (a) of the statutes is amended to read:

AB1038,69,24 867.03 (1m) (a) Whenever an heir, trustee, or person who was guardian of the decedent at the time of the decedent's death intends to transfer a decedent's property by affidavit under sub. (1g) and the decedent or the decedent's spouse ever received the family care benefit under s. 46.286, medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7) or aid under s. 49.68, 49.683 or 49.685, the heir, trustee, or person who was guardian of the decedent at the time of the decedent's death shall give notice to the department of health and family services of his or her intent. The notice shall include the information in the affidavit under sub. (1g) and the heir, trustee, or person who was guardian of the decedent at the time of the decedent's death shall give the notice by certified mail, return receipt requested.

AB1038, s. 238 Section 238. 867.03 (1m) (b) of the statutes is amended to read:

AB1038,70,9 867.03 (1m) (b) An heir, trustee, or person who was guardian of the decedent at the time of the decedent's death who files an affidavit under sub. (1g) that states that the decedent or the decedent's spouse received the family care benefit under s. 46.286, medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), or aid under s. 49.68, 49.683, or 49.685 shall attach to the affidavit the proof of mail delivery of the notice required under par. (a) showing a delivery date that is not less than 10 days before the day on which the heir, trustee, or person who was guardian of the decedent at the time of the decedent's death files the affidavit.

AB1038, s. 239 Section 239. 867.03 (2) of the statutes is amended to read:

AB1038,70,15 867.03 (2) Release of liability of transferor. Upon the transfer to the heir, trustee, or person who was guardian of the decedent at the time of the decedent's death furnishing the affidavit with an attached proof of mail delivery if required under sub. (1m) (b), the transferor is released to the same extent as if the transfer had been made to the personal representative of the estate of the decedent.

AB1038, s. 240 Section 240. 867.03 (2g) of the statutes is created to read:

AB1038,71,2 867.03 (2g) Obligation of affiant. By accepting the decedent's property under this section the heir, trustee, or guardian assumes a duty to apply the property transferred for the payment of obligations according to priorities established under s. 859.25 and to distribute any balance to those persons designated in the appropriate governing instrument, as defined in s. 854.01, of the decedent or if there is no governing instrument, according to the rules of intestate succession under ch. 852. An heir or guardian may publish a notice to creditors in the same manner and with the same effect as a trustee under s. 701.065. This subsection does not prohibit any appropriate person from requesting administration of the decedent's estate under s. 856.07 or ch. 865.

AB1038, s. 241 Section 241. 867.035 (1) (a) 4. of the statutes is amended to read:

AB1038,71,6 867.035 (1) (a) 4. The value of the solely owned property subject to administration in this state left by the decedent, after payment of burial costs, does not exceed the amount under s. 867.03 (1g) (intro.).

AB1038, s. 242 Section 242. 867.045 (1) (intro.) of the statutes is amended to read:

AB1038,71,18 867.045 (1) (intro.) Upon the death of any person having an interest as a joint tenant or life tenant in any real property or in the vendor's interest in a land contract or a mortgagee's interest in a mortgage, the surviving joint tenant or remainderman any person interested in the property may obtain evidence of the termination of that interest of the decedent by providing to the register of deeds of the county in which such property is located a certified copy of the death certificate for the decedent and by providing, on applications supplied by the register of deeds for that purpose, the name and address of the decedent and of the surviving joint tenant or remainderman and remainder beneficiary, the date of the decedent's death, and the applicant's interest in the property. The surviving joint tenant or remainderman applicant shall provide to the register of deeds the following information:

AB1038, s. 243 Section 243. 867.045 (2) of the statutes is amended to read:

AB1038,71,23 867.045 (2) The register of deeds or other person authorized under s. 706.06 or 706.07 shall complete a statement at the foot of the application, declaring that the surviving joint tenant or remainderman applicant appeared before him or her and verified, under oath, the correctness of the information required by sub. (1).

AB1038, s. 244 Section 244. 867.045 (4) of the statutes is amended to read:

AB1038,72,7 867.045 (4) Upon the recording, the application shall be presumed to be evidence of the facts recited and shall terminate the joint tenancy or life estate, all with the same force and effect as if issued by the court assigned to exercise probate jurisdiction for the county of domicile of the decedent under s. 867.04. This application shall not constitute evidence of payment of any death tax which may be due, the payment for which shall remain an obligation of the surviving joint tenant or remainderman remainder beneficiary.

AB1038, s. 245 Section 245. 867.046 (1m) of the statutes is amended to read:

AB1038,73,2 867.046 (1m) Upon death; generally. If a domiciliary of this state dies who immediately prior to death had an interest in property in this state, including an interest in survivorship marital property or an interest in property passing under s. 705.20 (1), or if a person not domiciled in this state dies having an interest in property in this state, including an interest in survivorship marital property or an interest in property passing under s. 705.20 (1), upon petition of the decedent's spouse or upon petition of, a beneficiary of a marital property agreement, or a beneficiary of a transfer under s. 705.20 (1) to the court of the county of domicile of the decedent or, if the decedent was not domiciled in this state, of any county where the property is situated, the court shall issue a certificate under the seal of the court. The certificate shall set forth the fact of the death of the decedent, the termination or transfer of the decedent's interest in the property, the interest of the petitioner in the property and any other facts essential to a determination of the rights of persons interested. The certificate is prima facie evidence of the facts recited, and if the certificate relates to an interest in real property or to a debt secured by an interest in real property, the petitioner shall record a certified copy or duplicate original of the certificate in the office of the register of deeds in each county in this state in which the real property is located.

AB1038, s. 246 Section 246. 867.046 (2) (intro.) of the statutes is amended to read:

AB1038,73,14 867.046 (2) Upon death; interest in property. (intro.) As an alternative to sub. (1m), upon the death of any person having an interest in any real property, a vendor's interest in a land contract, an interest in a savings or checking account, an interest in a security or, a mortgagee's interest in a mortgage, or an interest in property passing under s. 705.20 (1), including an interest in survivorship marital property, the decedent's spouse or, a beneficiary of a marital property agreement, or a beneficiary of a transfer under s. 705.20 (1) may obtain evidence of the termination of that interest of the decedent and confirmation of the petitioner's interest in the property by providing to the register of deeds of the county in which the property is located the certified death certificate for the decedent and, on applications supplied by the register of deeds for that purpose, all of the following information:

AB1038, s. 247 Section 247. 867.046 (2) (k) of the statutes is created to read:

AB1038,73,17 867.046 (2) (k) In the case of a transfer under s. 705.20 (1), except as described in par. (i) or (j), a copy of the document described in s. 705.20 (1).

AB1038, s. 248 Section 248. 879.09 of the statutes is amended to read:

AB1038,74,3 879.09 Notice requirement satisfied by waiver of notice. Persons who are not minors or incompetent, on behalf of themselves, and appointed guardians ad litem and guardians of the estate on behalf of themselves and those whom they represent, may in writing waive the service of notice upon them and consent to the hearing of any matter without notice except that guardians ad litem cannot waive the notice of a hearing to prove a will or for administration on behalf of those whom they represent. An attorney, or attorney-in-fact, for a person in the military service may waive notice on behalf of himself or herself but cannot waive notice on behalf of the person in the military service. Waiver of notice by any person is equivalent to timely service of notice.

AB1038, s. 249 Section 249. 880.61 (11m) of the statutes is created to read:

AB1038,74,7 880.61 (11m) "Qualified minor's trust" means any trust, including a trust created by the custodian, that satisfies the requirements of section 2503 (c) of the Internal Revenue Code and the regulations implementing that section.

AB1038, s. 250 Section 250. 880.675 (1m) of the statutes is created to read:

AB1038,74,11 880.675 (1m) At any time a custodian may transfer part or all of the custodial property to a qualified minor's trust without a court order. Such a transfer terminates the custodianship to the extent of the transfer.

AB1038, s. 251 Section 251. 1997 Wisconsin Act 188, section 233 (1) is amended to read:

AB1038,74,16 [1997 Wisconsin Act 188] Section 233 (1) This act first applies to transfers relating to deaths occurring on January 1, 1999, except with respect to irrevocable that this act does not apply to transfers under governing instruments executed that were irrevocable before that date.

AB1038, s. 252 Section 252. Initial applicability.

AB1038,74,25 (1) The treatment of sections 852.12, 854.12, 861.31 (1c), (1m), (2), and (4) (intro.) and (a), 861.33 (1) (a) (intro.), (b), and (c), (2), (3), and (4), 861.35 (1c), (1m) (intro.), (a), (b), and (c), (2), (3) (a), and (4) (intro.) and (a), and 863.15 of the statutes, the renumbering and amendment of section 854.08 (5) of the statutes, and the creation of sections 852.01 (1) (a) 2. b. and 854.08 (5) (a) and (d) of the statutes first apply to transfers related to deaths occurring on the effective date of this subsection but do not apply to transfers under governing instruments that were irrevocable before that date.

AB1038,75,5 (2) The treatment of sections 705.06 (1) (c), 705.27, and 705.28 of the statutes, the renumbering and amendment of section 705.04 (2) of the statutes, and the creation of section 705.04 (2) (a), (d), (e), (f), and (g) of the statutes first apply to contracts entered into on the first day of the 4th month beginning after the effective date of this subsection.

AB1038,75,6 (End)