859.48 Claims of creditors without notice.
859.49 Last illness and funeral expense of deceased spouse.
859.51 No impediment to summary settlement.
Ch. 859 Cross-reference
Cross-reference: See definitions in ch.
851.
859.01
859.01
Time for filing claims. When an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent's estate. The date shall be not less than 3 nor more than 4 months from the date of the order.
859.01 History
History: 1989 a. 96.
859.01 Annotation
The statute of limitations concerning claims filed against an estate in probate may not be waived. Estate of Palmer, 68 W (2d) 101, 227 NW (2d) 680.
859.02
859.02
Limitation on claims. 859.02(1)
(1) Except as provided in
sub. (2) and
s. 859.03, all claims against a decedent's estate 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 estate, the personal representative and the heirs and beneficiaries of the decedent unless filed on or before the date set under
s. 859.01.
859.02(2)
(2) A claim against a decedent's estate that is not filed on or before the date set under
s. 859.01 is not barred if:
859.02(2)(a)
(a) It 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 insurance 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; or
859.02(2)(b)1.
1. On or before the date set under
s. 859.01, the personal representative 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.
859.02(2)(b)2.
2. At least 30 days prior to the date set under
s. 859.01, the personal representative had not given notice to the potential claimant of the final day for filing his or her claim and the court in which the estate proceeding was pending.
859.02(2)(b)3.
3. At least 30 days prior to the date set under
s. 859.01, the claimant did not have actual knowledge that the estate proceeding was pending and of the court in which that proceeding was pending.
859.02(3)
(3) Failure of a claimant timely to file a claim against a decedent's estate does not bar the claimant from satisfying the claim from property other than the decedent's estate.
859.02 Annotation
Cross-references: See s. 893.93 (1) (c) which bars all claims against a decedent or the estate if administration not commenced within 6 years after death.
859.02 Annotation
See s. 859.45 as to tort claims.
859.02 Annotation
An otherwise valid lease and sale of personalty executed by decedent are not claims against the estate subject to the limitations of this section. In re Estate of Taylor, 81 W (2d) 687, 260 NW (2d) 803.
859.02 Annotation
Claim against estate for personal services rendered during adulterous relationship with deceased was allowed under quasi-contract. In Matter of Estate of Steffes, 95 W (2d) 490, 290 NW (2d) 697 (1980).
859.02 Annotation
Mere fact that personal representative corresponded with creditors about accounts payable did not give rise to fiduciary duty on part of personal representative to disclose information about filing claims. In Matter of Estate of Lecic, 104 W (2d) 592, 312 NW (2d) 773 (1981).
859.02 Annotation
Testator's breach of contract in failing to make certain provisions by will is not actionable in tort. Landwehr v. Citizens Trust Co. 110 W (2d) 716, 329 NW (2d) 411 (1983).
859.02 Annotation
Probate filing deadlines for surviving spouses under a marital property regime. Rasmussen and Brown. WBB June 1988.
859.03
859.03
Continuance of separate action. 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 personal representative 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
s. 859.01 gives the plaintiff the same rights against the estate as the filing of a claim. A judgment in any such action constitutes an adjudication for or against the estate.
859.03 History
History: 1977 c. 449;
1989 a. 96.
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,
301.03 (18),
301.12 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.
