CHAPTER 867
PROBATE — SUMMARY PROCEDURES
867.01 Summary settlement of small estates.
867.02 Summary assignment of small estates subject to claims of creditors.
867.03 Transfer by affidavit.
867.035 Transfer by affidavit; recipients of certain benefits.
867.04 Termination of joint tenancy and life estate.
867.045 Administrative joint tenancy or life estate termination for certain property.
867.046 Summary confirmation of interest in property.
867.05 Determination of descent of property.
867.07 Grounds for appointment of special administrator.
867.09 Who may petition for appointment of special administrator.
867.11 Notice of hearing on petition for appointment of special administrator.
867.13 Bond of special administrator.
867.15 Letters of special administration; no appeal.
867.17 Powers, duties and liabilities of special administrator.
867.19 Compensation of special administrator.
867.21 Termination of authority and discharge of special administrator.
Ch. 867 Cross-reference
Cross-reference: See definitions in ch.
851.
867.01
867.01
Summary settlement of small estates. 867.01(1)(1)
Availability. The court shall summarily settle the estate of a deceased person without the appointment of a personal representative:
867.01(1)(a)
(a) Whenever the estate, less the amount of the debts for which any property in the estate is security, does not exceed in value the costs, expenses, allowances and claims under
s. 859.25 (1) (a) to
(g).
867.01(1)(b)
(b) Whenever the estate, less the amount of the debts for which any property in the estate is security, does not exceed $30,000 in value and the decedent is survived by a spouse or one or more minor children or both.
867.01(2)
(2) When commenced under other procedure. An estate, administration of which has been commenced under
ch. 856, may be terminated under this section at any time that it is found to meet the requirements of this section.
867.01(3)
(3) Procedure. A person who has standing to petition for administration of the estate under
s. 856.07 has standing to petition for summary settlement.
867.01(3)(a)
(a)
Petition. The petition shall contain the following information:
867.01(3)(a)2.
2. A detailed statement of 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.
867.01(3)(a)3.
3. The names and post-office addresses of all persons interested, so far as known to the petitioner or ascertainable by the petitioner with reasonable diligence. The petition shall indicate those who are minors or otherwise under disability and the names and post-office addresses of their guardians.
867.01(3)(b)
(b)
Special administrator may be appointed. If the court deems it necessary, it may at any time during the proceeding appoint a special administrator to aid in the settlement.
867.01(3)(c)
(c)
Bond. Before making any order, the court may require a bond of the petitioner in an amount the court deems sufficient, conditioned to indemnify any person who may be aggrieved thereby.
867.01(3)(d)
(d)
Notice. The court may hear the matter without notice or order notice to be given under
s. 879.03. If the decedent or the decedent's spouse 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 petitioner shall give notice by certified mail to the department of health and family services as soon as practicable after filing the petition with the court.
867.01(3)(f)
(f)
Order. If the court is satisfied that the estate may be settled under this section, after 30 days have elapsed since notice to the department of health and family services under
par. (d), if that notice is required, the court shall assign the property to the persons entitled to it. If the estate may be settled under
sub. (1) (b), any property not otherwise assigned shall be assigned to the surviving spouse or minor children or both as an allowance under
s. 861.31. The court shall order any person indebted to or holding money or other property of the decedent to pay the indebtedness or deliver the property to the persons found to be entitled to receive it. The court shall order the transfer of interests in real estate, stocks or bonds registered in the name of the decedent, the title of a licensed motor vehicle, or any other form of property. If the decedent immediately prior to death had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination in accordance with
s. 867.04 has not been issued, the order shall set forth the termination of that life estate or the right of survivorship of any joint tenant. Every tract of real property in which an interest is assigned or terminated or which is security for a debt in which an interest is assigned or terminated shall be specifically described.
867.01(3)(g)
(g)
Information to unsatisfied creditors. The court may order the petitioner to inform known unsatisfied creditors as to the final disposition of the estate.
867.01(3)(h)
(h)
Recording required. Whenever the order relates to an interest in real property or to a debt which is secured by an interest in real property, a certified copy or duplicate original of such order shall be recorded by the petitioner in the office of the register of deeds in each county in this state in which such real property is located.
867.01(4)
(4) Release of liability of transferor. Upon the payment, delivery, transfer or issuance in accordance with the order of the court, the persons making such delivery, transfer or issuance are released to the same extent as if the same had been made to a personal representative of the estate of the decedent.
867.01(5)
(5) Proceeding with or without attorney. Any party to a proceeding under this section may commence or appear at such proceeding in his or her own behalf, by an attorney or, if in the military service, by an attorney-in-fact, but not otherwise.
867.01 Annotation
Cross-references: See ch. 705 concerning multiple-party and agency accounts.
867.01 Annotation
See s. 856.01 for jurisdiction for administration of estates.
867.01 Annotation
See s. 880.28 which provides for summary closing by guardian of small estate of ward.
867.01 Annotation
See s. 895.41 (3) for payment of decedent's employe's cash bond by employer directly to decedent's dependents.
867.02
867.02
Summary assignment of small estates subject to claims of creditors. 867.02(1)
(1)
Availability. The court shall summarily assign the estate of a deceased person without the appointment of a personal representative if the estate, less the amount of the debts for which any property in the estate is security, does not exceed $30,000 in value and the estate cannot be summarily settled under
s. 867.01. An estate, administration of which has been commenced under
ch. 856, or a summary settlement commenced under
s. 867.01 may be terminated under this section at any time that it is found to meet the requirements of this section.
867.02(2)
(2) Procedure. Any person who has standing to petition for administration of the estate under
s. 856.07 has standing to petition for summary assignment.
867.02(2)(a)
(a)
Petition. The petition shall contain the following information, except that the petitioner may omit from the petition the information in
subds. 3. and
4. and include it in an affidavit filed with the court prior to the signing of the order assigning the estate:
867.02(2)(a)1.
1. A statement that the estate does not exceed $30,000 in value and cannot be summarily settled under
s. 867.01.
867.02(2)(a)2.
2. A statement as to whether, after the exercise of reasonable diligence, the petitioner has been able to locate the will of the decedent.
867.02(2)(a)3.
3. A detailed statement of 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.
867.02(2)(a)4.
4. The names and post-office addresses of all creditors of the decedent or the decedent's estate of whom the petitioner has knowledge and the amount claimed by each.
867.02(2)(a)5.
5. The names and post-office addresses of all persons interested, so far as known to petitioner or ascertainable by the petitioner with reasonable diligence. The petition shall indicate those who are minors or otherwise under disability and the names and post-office addresses of their guardians.
867.02(2)(b)
(b)
Will. The will of the decedent shall be filed with the petition.
867.02(2)(c)
(c)
Bond. Before making any order, the court may require a bond of the petitioner in an amount the court deems sufficient, conditioned to indemnify any person who may be aggrieved by the order. Before assigning property, the court may require assignees to give bond for the satisfaction of their liability to creditors or persons interested in the estate.
867.02(2)(d)
(d)
Notice. The court may hear the matter, including the proof of the will, without notice to interested persons or order notice to be given under
s. 879.03. As soon as practicable after filing the petition with the court, the petitioner shall give notice by certified mail to the department of health and family services. After the filing of the petition with the court, the petitioner shall publish notice to creditors as a class 1 notice, under
ch. 985, in a newspaper published in the county.
867.02(2)(f)
(f)
Special administrator may be appointed. If the court deems it necessary, it may at any time during the proceeding appoint a special administrator to aid in the proceeding.
867.02(2)(g)
(g)
Order. If the court is satisfied that the estate may be settled by this section, after filing of the petition and proof of the will and after 30 days have elapsed since publication under
par. (d), it shall decide all claims and assign the property to the creditors and persons interested who are entitled to it. The assignment shall be subject to the unknown rights of creditors or persons interested in the estate as limited in
sub. (4). The court shall order any person indebted to or holding money or other property of the decedent to pay the indebtedness or deliver the property to the persons found to be entitled to receive it. It shall order the transfer of interests in real estate, stocks or bonds registered in the name of the decedent, the title of a licensed motor vehicle or any other form of property. If the decedent immediately prior to death had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination under
s. 867.04 has not been issued, the order shall set forth the termination of the life estate or the right of survivorship of any joint tenant. Every tract of real property in which an interest is assigned or terminated or which is security for a debt in which an interest is assigned or terminated shall be specifically described.
867.02(2)(h)
(h)
Recording required. Whenever the order relates to an interest in real property or to a debt which is secured by an interest in real property, a certified copy or duplicate original of the order shall be recorded by the petitioner in the office of the register of deeds in each county in this state in which the real property is located.
867.02(2)(i)
(i)
Mailing or delivery required. The petitioner shall mail or deliver a copy of the order to all persons interested in the estate whose post-office address is known to the petitioner or can with reasonable diligence be ascertained.
867.02(3)
(3) Release of liability of transferor. Upon the payment, delivery, transfer or issuance in accordance with the order of the court, the persons making the payment, delivery, transfer or issuance are released to the same extent as if the same had been made to a personal representative of the estate of the decedent.
867.02(4)
(4) Rights of creditors and persons interested; statutes of limitation. Creditors and persons interested in the estate who were not assigned the property to which they were entitled from the estate may recover against those assignees, or their respective bondsmen whose assigned shares have been increased by reason of the fact that the creditor or person interested was not assigned the share of the estate to which the creditor or person interested was entitled. No assignee or assignee's bondsman shall be liable for an amount greater than the value of the property which was assigned to the assignee from the estate, the value to be determined as of the time of the assignment. No action for the recovery of any property assigned in the proceeding or for the value of such property shall be brought by any creditor more than 3 months after the publication. No action for the recovery of any property assigned in the proceeding or for the value of such property may be brought by any person interested more than 3 months after a copy of the order assigning the estate was mailed or delivered to the person, or if the person's name or post-office address could not have been ascertained by the exercise of reasonable diligence on the part of the petitioner, then more than 3 months after a copy of the order assigning the estate was mailed or delivered to any person interested.
867.02(5)
(5) Proceeding with or without attorney. Any party to a proceeding under this section may commence or appear at such proceeding in his or her own behalf, by an attorney or, if in the military service, by an attorney-in-fact, but not otherwise.
867.02 Annotation
The 3-month limitation under (4) does not bar reconsideration of a summary assignment where there was constructive fraud in its procurement. In re Estate of Boots, 73 W (2d) 207, 243 NW (2d) 225.
867.03
867.03
Transfer by affidavit. 867.03(1)
(1)
Generally. When a decedent leaves solely owned property in this state which does not exceed $10,000 in value, any heir of the decedent may collect any money due the decedent, receive the property of the decedent if it is not an interest in or lien on real property and have any evidence of interest, obligation to or right of the decedent transferred to the affiant upon furnishing 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, with proof of prior mailed notice under
sub. (1m) if applicable and with an affidavit in duplicate showing all of the following:
867.03(1)(a)
(a) A description of and the value of the property to be transferred.
867.03(1)(b)
(b) The total value of the decedent's property in this state at the date of decedent's death.
867.03(1m)(a)(a) Whenever an heir intends to transfer a decedent's property by affidavit under
sub. (1) and the decedent or the decedent's spouse 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 heir 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. (1) and the heir shall give the notice by certified mail, return receipt requested.
867.03(1m)(b)
(b) An heir who files an affidavit under
sub. (1) that states that the decedent or the decedent's spouse 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 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 files the affidavit.
867.03(2)
(2) Release of liability of transferor. Upon the transfer to the heir 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.
867.03(3)
(3) Applicability. This section is additional to
s. 109.03 (3) for payment of decedent's wages by an employer directly to the decedent's dependents.
867.035
867.035
Transfer by affidavit; recipients of certain benefits. 867.035(1)(1) The department of health and family services may collect from the property; except interests in or liens on real property; wearing apparel; jewelry; household furniture, furnishings and appliances; motor vehicles and recreational vehicles; of a decedent by affidavit under this section an amount equal to the medical assistance that is recoverable under
s. 49.496 (3) (a), the long-term community support services under
s. 46.27 that is recoverable under
s. 46.27 (7g) (c) 1. or the aid under
s. 49.68,
49.683 or
49.685 that is recoverable under
s. 49.682 (2) (a) and that was paid on behalf of the decedent or the decedent's spouse, if all of the following conditions are satisfied:
867.035(1)(a)
(a) No person files a petition for administration or summary settlement of the decedent's estate within 20 days of death.
867.035(1)(b)
(b) The decedent is not survived by a spouse, a child who is under age 21 or a child who is disabled, as defined in
s. 49.468 (1) (a) 1.
867.035(1)(d)
(d) The value of the solely owned property in this state left by the decedent, after payment of burial costs, does not exceed the amount under
s. 867.03 (1) (intro.).
867.035(2)
(2) A person who possesses property of a decedent shall transmit the property to the department of health and family services upon receipt of an affidavit by a person designated by the secretary of health and family services to administer this section showing that the conditions in
sub. (1) are satisfied. Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.
867.035(3)
(3) If a person has a valid claim against the decedent's estate that would have a higher priority under
s. 859.25 (1) if the estate were administered than the department of health and family services would have under
s. 859.25 (1) (e) and the person demands payment in writing within one year of the date on which the property was transmitted to the department, the department shall pay to the person the value of the property collected under
sub. (2) or the amount of the claim, whichever is less. The department may authorize any person who possesses property of the decedent to honor higher priority claims with the decedent's property before transmitting property to the department.
867.035(4)
(4) From the appropriation under
s. 20.435 (1) (im), with respect to funds collected by the department under
sub. (1) related to medical assistance paid on behalf of the decedent or the decedent's spouse, the department of health and family services shall pay claims under
sub. (3), shall pay to the federal government from the amount recovered under this section and not paid out as claims under
sub. (3) an amount equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the amount recovered under this section for medical assistance benefits under
subch. IV of ch. 49.
867.035(4m)
(4m) From the appropriation under
s. 20.435 (7) (im), with respect to funds collected by the department under
sub. (1) related to long-term community support services funded under
s. 46.27 (7) paid on behalf of the decedent or the decedent's spouse, the department of health and family services shall pay claims under
sub. (3) and shall spend the remainder of the funds recovered under this section for long-term community support services funded under
s. 46.27 (7).
