854.07 History
History: 1997 a. 188.
854.07 Annotation
Under a will leaving "my homestead which I occupy at the time of my death" to a son, the home in which the testator lived when the will is executed should be awarded to the son even though the testator became ill and was confined to a nursing home for a year prior to his death and the home was rented. Estate of Gotthart,
56 Wis. 2d 563,
202 N.W.2d 397.
854.07 Annotation
A purported residuary clause made only specific and general bequests, making no dispositive provision for the residuum. Therefore, although contrary to the implied wish of testator, the spouse inherited the residuum. In Matter of Estate of McWilliams,
78 Wis. 2d 328,
254 N.W.2d 277.
854.07 Note
NOTE: The preceding cases were decided prior to the adoption of
1997 Wis. Act 188, which made extensive revisons to the Wisconsin Probate Code and do not relate directly to this section.
854.08
854.08
Nonademption of specific gifts in certain cases. 854.08(1)(1)
Abrogation of common law. The common law doctrine of ademption by extinction, as it might otherwise apply to the situations governed by this section, is abolished.
854.08(2)(a)(a) Subject to
sub. (6), if property that is the subject of a specific gift is sold by the person who executed the governing instrument within 2 years of the person's death, the specific beneficiary has the right to the following amounts if available under the governing instrument:
854.08(2)(a)1.
1. Any balance of the purchase price unpaid at the time of death, including any security interest in the property and interest accruing before death, together with the incidents of the specific gift.
854.08(2)(a)2.
2. A general pecuniary transfer equivalent to the amount of the purchase price paid to, or for the benefit of, the person within one year of the seller's death.
854.08(2)(b)
(b) Acceptance of a promissory note of the purchaser or a 3rd party is not considered payment, but payment on the note is payment on the purchase price; and for purposes of this section property is considered sold as of the date when a valid contract of sale is made. Sale by an agent of the person who executed the governing instrument or by a trustee under a revocable living trust created by the person is a sale by the person for purposes of this section.
854.08(3)
(3) Proceeds of insurance on property. Subject to
sub. (6), if insured property that is the subject of a specific gift is destroyed, damaged, lost, stolen or otherwise subject to any casualty compensable by insurance, the specific beneficiary has the right to the following amounts, if available under the governing instrument, reduced by any amount expended or incurred to restore or repair the property:
854.08(3)(a)
(a) Any insurance proceeds paid with respect to the property after the decedent's death, together with the incidents of the specific gift.
854.08(3)(b)
(b) A general pecuniary transfer equivalent to any insurance proceeds paid to, or for the benefit of, the decedent within one year of the decedent's death.
854.08(4)(a)(a) Subject to
sub. (6), if property that is the subject of a specific gift is taken by condemnation prior to the death of the person who executed the governing instrument, the specific beneficiary has the right to the following amounts if available under the governing instrument:
854.08(4)(a)1.
1. Any amount of the condemnation award unpaid at the time of death.
854.08(4)(a)2.
2. A general pecuniary transfer equivalent to the amount of an award paid to, or for the benefit of, the person who executed the governing instrument within one year of that person's death.
854.08(4)(b)
(b) In the event of an appeal in a condemnation proceeding, the award is, for purposes of this section, limited to the amount established on the appeal. Acceptance of an agreed price or a jurisdictional offer is a sale under
sub. (2).
854.08(5)
(5) Sale or loss of property of an incompetent. Subject to
sub. (6), if property that is the subject of a specific gift is sold by a guardian or conservator of the person who executed the governing instrument, or if a condemnation award or insurance proceeds are paid to a guardian or conservator, the specific beneficiary has the right to a general pecuniary transfer equivalent to the proceeds of the sale or the condemnation award, or the insurance proceeds, reduced by any amount expended or incurred to restore or repair the property if the funds are available under the governing instrument. This provision does not apply if the person who executed the governing instrument, subsequent to the sale or award or receipt of insurance proceeds, is adjudicated competent and survives such adjudication for a period of one year; but in such event a sale by a guardian or conservator within 2 years of that person's death is a sale by that person for purposes of
sub. (2).
854.08(6)(a)(a) This section is inapplicable if any of the following applies:
854.08(6)(a)1.
1. The governing instrument, either expressly or as construed from extrinsic evidence, shows the intent that a transfer fail under the particular circumstances.
854.08(6)(a)2.
2. The person who executed the governing instrument gives property during the person's lifetime to the specific beneficiary with the intent of satisfying the specific gift. Extrinsic evidence may be used to construe that intent.
854.08(6)(b)
(b) If part of the property that is the subject of the specific gift is destroyed, damaged, sold or condemned, the specific gift of any remaining interest in the property is not affected by this section; but this section applies to the part affected by the destruction, damage, sale or condemnation.
854.08(6)(c)
(c) The amount that the specific beneficiary receives under
subs. (2) to
(5) is reduced by any expenses of the sale, by the expenses of collection of the proceeds of insurance, sale, or condemnation award and by any amount by which the income tax of the decedent or the decedent's estate is increased because of items covered by this section. Expenses include legal fees paid or incurred.
854.08 History
History: 1997 a. 188.
854.09
854.09
Advancement; satisfaction. 854.09(1)
(1) A gift that the decedent made during his or her lifetime, including an incomplete gift that became complete on the decedent's death, is treated as a full or partial satisfaction of a transfer at death to an heir under
s. 852.01 (1) or a transferee under a governing instrument executed by the decedent only if at least one of the following applies:
854.09(1)(a)
(a) The governing instrument, if any, either expressly or as construed from extrinsic evidence, provides that the gift be taken into account.
854.09(1)(b)
(b) The decedent declared in a document, either expressly or as construed from extrinsic evidence, that the gift is in satisfaction of, or an advance against, what the transferee would receive at the decedent's death, whether or not the document was contemporaneous with the gift.
854.09(1)(c)
(c) The transferee acknowledged in writing before or after the decedent's death, either expressly or as construed from extrinsic evidence, that the gift is in satisfaction of, or an advance against, what the transferee would receive at the decedent's death.
854.09(2)
(2) For partial satisfaction, property given during life is valued as of the time that the transferee came into possession or enjoyment of the property or at the death of the person who executed the governing instrument, whichever occurs first.
854.09(3)
(3) If the transferee fails to survive the person who executed the governing instrument, the gift is treated as a full or partial satisfaction of the transfer, unless the transferor has declared otherwise in a document, either expressly or as construed from extrinsic evidence.
854.09 History
History: 1997 a. 188.
854.10
854.10
Choice of law. The meaning and legal effect of a governing instrument are determined by the local law of the state selected by the transferor in the governing instrument, unless the application of that law is contrary to
s. 861.02 or
861.31 or any other public policy of this state otherwise applicable to the disposition.
854.10 History
History: 1997 a. 188.
854.11
854.11
Gift of securities. 854.11(1)(1)
Definition. In this section, "securities" includes all of the following:
854.11(1)(a)
(a) Any note, stock, treasury stock, bond, debenture, evidence of indebtedness, collateral trust certificate, transferable share or voting trust certificate.
854.11(1)(b)
(b) Any certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease.
854.11(1)(c)
(c) Any interest or instrument commonly known as a security.
854.11(1)(d)
(d) Any certificate of interest or participation in, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the instruments or interests specified in
pars. (a) to
(c).
854.11(2)
(2) Increase in securities; accessions. Except as provided in
sub. (4), if a person executes a governing instrument that transfers securities and at the time of the execution or immediately after execution the described securities are in fact governed by the instrument, the transfer includes additional securities that are governed by the instrument at the person's death if all of the following apply:
854.11(2)(a)
(a) The additional securities were acquired after the governing instrument was executed.
854.11(2)(b)
(b) The additional securities were acquired as a result of ownership of the described securities.
854.11(2)(c)
(c) The additional securities are any of the following types:
854.11(2)(c)1.
1. Securities of the same organization acquired as a result of a plan of reinvestment.
854.11(2)(c)2.
2. Securities of the same organization acquired by action initiated by the organization or any successor, related or acquiring organization, excluding any acquired by exercise of purchase options.
854.11(2)(c)3.
3. Securities of another organization acquired as a result of a merger, consolidation, reorganization or other distribution by the organization or any successor, related or acquiring organization.
854.11(3)
(3) Gift of securities construed as specific. Except as provided in
sub. (4), a transfer of a stated number of shares or amount of securities is construed to be a specific gift if the same or a greater number of shares or amount of the securities was governed by the instrument at the time of, or immediately after, execution of the instrument, even if the instrument does not describe the securities more specifically or qualify the description by a possessive pronoun such as "my".
854.11(4)
(4) Contrary intent. This section does not apply if there is a finding of contrary intent of the person who executed the governing instrument. Extrinsic evidence may be used to construe that intent.
854.11 History
History: 1997 a. 188.
854.13(1)(a)
(a) "Beneficiary under a governing instrument" includes any person who receives or might receive property under the terms or legal effect of a governing instrument.
854.13(2)(a)(a)
In general. A person who is an heir, recipient of property or beneficiary under a governing instrument, donee of a power created by a governing instrument, appointee under a power exercised by a governing instrument, taker in default under a power created by a governing instrument or person succeeding to disclaimed property may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.
854.13(2)(b)
(b)
Joint tenants. Upon the death of a joint tenant, a surviving joint tenant may disclaim any property that would otherwise accrue to him or her by right of survivorship and that is the subject of the joint tenancy by delivering a written instrument of disclaimer under this section.
854.13(2)(c)
(c)
Survivorship marital property. Upon the death of a spouse, the surviving spouse may disclaim the decedent spouse's interest in survivorship marital property.
854.13(2)(d)
(d)
Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by a governing instrument or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the governing instrument or by the instrument exercising the power.
854.13(2)(e)
(e)
Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
854.13(2)(f)
(f)
Disclaimer by guardian or conservator. A guardian of the estate or a conservator appointed under
ch. 880 may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.
854.13(2)(g)
(g)
Disclaimer by agent under power of attorney. An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:
854.13(2)(g)1.
1. The person who granted the power of attorney is entitled to disclaim under this section.
854.13(2)(g)2.
2. The power of attorney specifically grants the power to disclaim.
854.13(2)(h)
(h)
After death. A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action which would bar the right to disclaim under
sub. (11).
854.13(3)
(3) Instrument of disclaimer. The instrument of disclaimer shall do all of the following:
854.13(3)(b)
(b) Declare the disclaimer and the extent of the disclaimer.
854.13(3)(d)
(d) Be delivered within the time and in the manner provided under
subs. (4) and
(5).
854.13(4)(a)(a)
Present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the effective date of the transfer under the governing instrument. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.
854.13(4)(b)
(b)
Future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property is finally ascertained and his or her interest indefeasibly fixed. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.
854.13(4)(c)
(c)
Future right to income or profits. Notwithstanding
pars. (a) and
(b), an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.
854.13(4)(d)
(d)
Persons under 21. Notwithstanding
pars. (a) and
(b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.
854.13(4)(e)
(e)
Interests arising by disclaimer. Notwithstanding
pars. (a) and
(b), a person whose interest in property arises by disclaimer or by default of exercise of a power created by a governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power.
854.13(5)
(5) Delivery and filing of disclaimer. 854.13(5)(a)(a)
Delivery. In addition to any requirements imposed by the governing instrument, the instrument of disclaimer is effective only if, within the time specified under
sub. (4), it is delivered to and received by any of the following:
854.13(5)(a)1.
1. The transferor of the property disclaimed, if living.
854.13(5)(a)2.
2. The personal representative or special administrator of the deceased transferor of the property.
854.13(5)(b)
(b)
Delivery to trustee. If the trustee of any trust to which the interest or power relates does not receive the instrument of disclaimer under
par. (a), a copy shall also be delivered to the trustee.
854.13(5)(c)
(c)
Filing. When delivery is made to the personal representative or special administrator of a deceased transferor, a copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
854.13(5)(d)
(d)
Failure to deliver or file. Failure to deliver a copy of the instrument of disclaimer to the trustee under
par. (b) or to file a copy in the probate court under
par. (c), within the time specified under
sub. (4), does not affect the validity of any disclaimer.
854.13(5)(e)
(e)
Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
854.13(6)
(6) Property not vested. The property disclaimed under this section shall be considered not to have been vested in, created in or transferred to the disclaimant.
