859.03 Annotation
See note to 767.01, citing Morrissette v. Morrissette, 99 W (2d) 467, 299 NW (2d) 590 (Ct. App. 1980).
859.07
859.07
Notice; publication. 859.07(1)(1) Notice of the deadline for filing a claim under
s. 859.01 shall be given by publication, under
s. 879.05 (4), and may be given with the notice for granting letters. The first insertion shall be made within 15 days of the date of the order under
s. 859.01.
859.07(2)
(2) If the decedent was at the time of death or at any time prior thereto a patient or inmate of any state or county hospital or institution or any person responsible for any obligation owing to the state or county under
s. 46.03 (18),
46.10,
48.36 or
938.36 or if the decedent or the spouse of the decedent ever received 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 personal representative shall send notice in writing of the date set under
s. 859.01 by registered or certified mail to the department of health and family services or the department of corrections, as applicable, and the county clerk of the applicable county not less than 30 days before the date set under
s. 859.01, upon such blanks and containing such information as the applicable department or county clerk may provide. The applicable county is the county of residence, as defined in
s. 49.001 (6).
859.07(3)
(3) The personal representative may at any time give notice to any potential claimant of the deadline for filing a claim against the estate under
s. 859.01 or
859.48 and of the court in which the estate proceeding is pending.
859.07 Annotation
Notice to creditors by publication does not violate due process clause. In Matter of Estate of Fessler, 100 W (2d) 437, 302 NW (2d) 414 (1981).
859.09
859.09
Transfer of claims when administration fails. Claims filed against the estate of a decedent following an order and notice to creditors shall, if the administration proceeding fails, be deemed filed upon notice to creditors in a subsequent administration proceeding. If the subsequent proceeding is in a different county, such claims shall be transmitted to and filed in the proper court.
859.13
859.13
Form and verification of claims. 859.13(1)
(1)
General requirements. No claim shall be allowed unless it is in writing, describes the nature and amount thereof, if ascertainable, and is sworn to by the claimant or someone for the claimant that the amount is justly due, or if not yet due, when it will or may become due, that no payments have been made thereon which are not credited, and that there are no offsets to the knowledge of the affiant, except as therein stated. If the claim is one for which property is available under
s. 859.18, the claim shall describe which classification under
s. 766.55 (2) is applicable to the claim. The claim shall also show the post-office address of the claimant. The presumption under
s. 766.55 (1) applies to the classification of claims for which property is available under
s. 859.18.
859.13(2)
(2) Requirements when claim founded on written instrument. If a claim is founded on a written instrument which is available, the original or a copy thereof with all indorsements must be attached to the claim.
859.13 History
History: 1985 a. 37.
859.13 Cross-reference
Cross-reference: See s.
859.19 as to secured claims.
859.13 Note
NOTE: As to sub. (1) see notes in
1985 Wis. Act 37, marital property trailer bill.
859.13 Annotation
Provisions of (2) are properly construed as directory and not mandatory. In matter of Estate of Alexander, 75 W (2d) 168, 248 NW (2d) 475.
859.13 Annotation
Claimant has burden of proving existence of express agreement by deceased former employer to pay compensation in addition to wages paid during employment. In re Estate of Huber, 81 W (2d) 55, 259 NW (2d) 714.
859.15
859.15
Effect of statute of limitations. Except as provided in
ss. 46.10 (11),
49.08 and
49.195 (1), a claim shall not be allowed which was barred by any statute of limitations at the time of the decedent's death. A claim shall not be barred by statutes of limitation which was not barred at the time of the decedent's death if the claim is filed against the decedent's estate in the court on or before the deadline for filing a claim under
s. 859.01.
859.15 Annotation
Cross-references: See s. 893.03 which provides that the presentation of a claim in circuit court is deemed the commencement of an action.
859.15 Annotation
See s. 856.07 which authorizes any creditor of a decedent to petition for the administration of the estate 30 days after the date of death.
859.17
859.17
Claims not due. Upon proof of a claim which will become due at some future time, the court may:
859.17(1)
(1) Allow it at the present value and payment may be made as in the case of an absolute claim which has been allowed;
859.17(2)
(2) Order the personal representative to retain personally sufficient funds to satisfy the claim upon maturity; or
859.17(3)
(3) Order a bond to be given by the distributees for payment in satisfaction of the claim and the estate may be closed.
859.17 History
History: 1985 a. 332.
859.18
859.18
Satisfaction of obligations at death of a spouse. 859.18(1)(a)
(a) "Credit" means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for the property or services.
859.18(1)(b)
(b) "Creditor" means a person who regularly extends credit.
859.18(2)
(2) At the death of a spouse, property, including the proceeds of or property exchanged for that property, that but for the death of the spouse would have been available under
s. 766.55 (2) for satisfaction of an obligation continues to be available for satisfaction, except as provided in
subs. (3) to
(5).
859.18(3)
(3) Unless the obligation resulted from an extension of credit or from a tax obligation to this state, upon the death of a spouse who was the only obligated spouse under
s. 766.55 (2) (a) or the only incurring spouse under
s. 766.55 (2) (b) to
(d):
859.18(3)(a)
(a) No income of the surviving spouse is available for satisfaction of an obligation described under
s. 766.55 (2).
859.18(3)(b)
(b) Marital property of the surviving spouse, if otherwise available for satisfaction of an obligation described under
s. 766.55 (2), is available to the extent of the value of the marital property at the death of the decedent spouse.
859.18(4)(a)(a) If the decedent spouse was the only obligated spouse under
s. 766.55 (2) (a) or the only incurring spouse under
s. 766.55 (2) (b) to
(d), the following property is not available for satisfaction of the obligation:
859.18(4)(a)2.
2. Joint tenancy property in which the decedent spouse was a tenant, subject to any judgment lien on which execution was issued before the spouse's death.
859.18(4)(a)3.
3. Deferred employment benefits arising from the decedent spouse's employment.
859.18(4)(a)4.
4. Proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.
859.18(4)(b)
(b) If the surviving spouse is the only obligated spouse under
s. 766.55 (2) (a) or the only incurring spouse under
s. 766.55 (2) (b) to
(d), the following property transferred to a person other than the surviving spouse is not available for satisfaction:
859.18(4)(b)1.
1. The decedent's interest in joint tenancy property, subject to any judgment lien on which execution was issued before the decedent's death.
859.18(4)(b)2.
2. Deferred employment benefits arising from the employment of the decedent spouse.
859.18(4)(b)3.
3. The proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.
859.18(5)
(5) If otherwise available under this section to satisfy an obligation under
s. 766.55 (2):
859.18(6)
(6) A provision in a marital property agreement, as defined under
s. 766.01 (12), which provides for the disposition of either or both spouses' property upon the death of a spouse does not affect property available under this section for satisfaction unless that property was not available for satisfaction under the marital property agreement while both spouses were alive and the agreement is binding on the creditor under
s. 766.55 (4m) or
766.56 (2) (c).
859.18 Note
NOTE: See
1985 Wis. Act 37 which contains an extensive note and an explanatory chart following this section.
859.18 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
859.19(1)(1) When a creditor holds any security for a claim the security shall be described in the claim, and the judgment allowing the claim shall describe the security. The security is sufficiently described if the security document is described by date and by the recording or filing data.
859.19(2)
(2) Payment of the claim shall be upon the basis of:
859.19(2)(a)
(a) The full amount thereof if the creditor surrenders the security; or
859.19(2)(b)
(b) If the creditor realizes on the security before receiving payment, then upon the full amount of the claim allowed less the fair value of the security.
859.19 History
History: 1985 a. 332.
859.19 Annotation
Cross-references: See s. 859.13 which deals with the form and verification of claims generally.
859.19 Annotation
See s. 859.43 which deals with the payment of secured claims.
859.19 Annotation
See s. 863.13 which deals with the exoneration of encumbered property.
859.21
859.21
Contingent claims. If the amount or validity of a claim cannot be determined until some time in the future, the claim is a contingent claim regardless of whether the claim is based on an event which occurred in the past or on an event which may occur in the future. Except for claims of the type not required to be filed under
s. 859.02, contingent claims which cannot be allowed as absolute must, nevertheless, be filed in the court and proved in the same manner as absolute claims. If allowed subject to the contingency, the order of allowance shall state the nature of the contingency. If the claim is allowed as absolute before distribution of the estate, it shall be paid in the same manner as absolute claims of the same class. In all other cases the court may provide for the payment of contingent claims in any one of the following methods:
859.21(1)
(1) The creditor and personal representative may determine, by agreement, arbitration or compromise, the value thereof, according to its probable present worth, and it may be allowed and paid in the same manner as an absolute claim.
859.21(2)
(2) The court may order the personal representative to make distribution of the estate but to retain sufficient funds to pay the claim if and when the same becomes absolute; but for this purpose the estate shall not be kept open longer than 2 years after distribution of the remainder of the estate has been made; and if the claim has not become absolute within that time, distribution shall be made to the distributees of the retained funds, after paying any costs and expenses accruing during such period but the distributees shall be liable to the creditor to the extent provided in
s. 859.23, if the contingent claim thereafter becomes absolute. When distribution is so made to distributees, the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.
859.21(3)
(3) The court may order distribution of the estate as though the contingent claim did not exist, but the distributees shall be liable to the creditor as limited by
s. 859.23, if the contingent claim thereafter becomes absolute; and the court may require the distributees to give bond for the satisfaction of their liability to the contingent creditor.
859.21(4)
(4) Such other method as the court orders.
859.21 History
History: 1989 a. 96;
1993 a. 486.
859.23
859.23
Payment of contingent claims by distributees. If a contingent claim is filed and allowed against an estate subject to the contingency and all the assets of the estate including the fund set apart for the payment thereof has been distributed, and the claim thereafter is allowed as absolute, the creditor may recover thereon against those distributees, or the persons who furnish bond for the distributees, whose distributive shares have been increased by reason of the fact that the amount of the claim as finally determined was not paid prior to final distribution, if a proceeding therefor is commenced in court within 6 months after the claim is allowed as absolute. A distributee or the person who furnishes bond for the distributee shall not be liable for an amount exceeding his or her proportionate share of the estate subject to the claim, nor for an amount greater than the value of the property which he or she received from the estate, the value to be determined as of the time of distribution to the distributee.
859.23 History
History: 1977 c. 449.
859.25
859.25
Priority of payment of claims and allowances. 859.25(1)(1)
Classes and priority. At the time of their allowance, all claims and allowances shall be classified in one of the following classes. If the applicable assets of the estate are insufficient to pay all claims and allowances in full, the personal representative shall make payment in the following order:
859.25(1)(d)
(d) Reasonable and necessary expenses of the last sickness of the decedent, including compensation of persons attending the decedent.
859.25(1)(e)
(e) All debts, charges or taxes owing to the United States, this state or a governmental subdivision or municipality of this state.
859.25(1)(f)
(f) Wages, including pension, welfare and vacation benefits, due to employes which have been earned within 3 months before the date of the death of the decedent, not to exceed $300 in value to each employe.
859.25(2)
(2) No preference within classes. Preference shall not be given in the payment of any claim over any other claim of the same class, nor shall a claim due and payable be entitled to a preference over claims not due.
859.27
859.27
Execution and levies prohibited. Garnishment, attachment or execution shall not issue against nor shall any levy be made against any property of the estate under any judgment or cause of action against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, liens or other security agreements upon real or personal property in an appropriate proceeding.
859.29
859.29
Persons interested may be informed of claims. After the deadline for filing a claim against the estate under
s. 859.01, any person interested in the estate may make a written request to the personal representative or special administrator for a statement listing all claims that have been filed against the estate. The statement shall show each claim, the name of the claimant, a brief description of the basis of the claim and the amount claimed. Within 5 days after receipt of the request, the personal representative shall mail or deliver a copy of the statement to the requester, including any guardian of the estate, guardian ad litem or attorney, or attorney-in-fact, for a person in the military service. Failure of the personal representative or special administrator to comply with this section does not affect the jurisdiction of the court as to persons interested.
859.29 History
History: 1989 a. 96;
1991 a. 220.
859.31
859.31
Compromise of claims. When a claim against the estate has been filed or suit thereon is pending, the creditor and personal representative may, if it appears for the best interests of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated; but if an objection to the claim has been filed by a person interested no compromise of the claim may be made without the consent of the objector.
859.33
859.33
Contest of claims; procedure. 859.33(1)
(1)
How contest initiated. The following persons may contest a claim or assert an offset or counterclaim in court: the personal representative, a guardian ad litem or a person interested who has the approval of the court. They may do so only by mailing a copy of the objection, offset or counterclaim to the claimant or personally serving the same upon the claimant and filing the same with the court. The objection, offset or counterclaim may be served at any time prior to entry of judgment on the claim, but if a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection, offset or counterclaim shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate. The personal representative shall not be obligated to assert any offset or counterclaim in court and may, if he or she deems it to be in the best interests of the estate, assert the offset or counterclaim in any separate action otherwise authorized by law outside the court proceedings. Any offset or counterclaim so asserted shall be deemed denied by the original claimant.
859.33(2)
(2) Procedure. If any claim, offset or counterclaim is contested, the court may require the issues to be made definite, fix a date for pretrial conference and direct the manner in which pleadings, if any, shall be exchanged. The court shall set a time for trial upon its own motion or upon motion of any party.
