867.02(2)(am)
(am)
Petition contents. 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)(am)1.
1. A statement that the estate does not exceed $50,000 in value and cannot be summarily settled under
s. 867.01.
867.02(2)(am)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)(am)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)(am)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)(am)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 sub. (4) does not bar reconsideration of a summary assignment if there was constructive fraud in its procurement. In re Estate of Boots,
73 Wis. 2d 207,
243 N.W.2d 225 (1976).
867.03
867.03
Transfer by affidavit. 867.03(1g)
(1g) Generally. When a decedent leaves solely owned property in this state which does not exceed $20,000 in value, any heir of 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 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:
867.03(1g)(a)
(a) A description of and the value of the property to be transferred.
867.03(1g)(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 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 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 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.
867.03(1m)(b)
(b) An heir 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 or person who was guardian of the decedent at the time of the decedent's death files the affidavit.
867.03(2)
(2) Release of liability of transferor. Upon the transfer to the heir 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.
867.03(2m)(a)(a) If an affidavit under
sub. (1g) describes an interest in or lien on real property a certified copy or duplicate original of the affidavit shall be recorded in the office of the register of deeds in each county in this state in which the real property is located.
867.03(2m)(b)
(b) For purposes of a transfer under this section of an interest in or lien on real property, the recording of the affidavit copy or duplicate original constitutes the transfer to the affiant under
sub. (1g) of the evidence of the interest in or lien on real property.
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)(a)(a) Subject to
par. (bm), the department of health and family services may collect from the property of a decedent, including funds of a decedent that are held by the decedent immediately before death in a joint account or a P.O.D. account, by affidavit under
sub. (2) or by lien under
sub. (2m) 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., the family care benefit that is recoverable under rules promulgated under
s. 46.286 (7), 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)1.
1. No person files a petition for administration or summary settlement or assignment of the decedent's estate within 20 days of death.
867.035(1)(a)4.
4. 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 (1g) (intro.).
867.035(1)(bm)
(bm) The department of health and family services shall reduce the amount of its recovery under
par. (a) by up to the amount specified in
s. 861.33 (2) if necessary to allow the decedent's heirs or beneficiaries under the decedent's will to retain the following personal property of the decedent:
867.035(1)(bm)4.
4. Other tangible personal property not used in trade, agriculture, or other business, not exceeding in value the amount specified in
s. 861.33 (1) (a) 4.
867.035(2)
(2) A person who possesses property of a decedent shall transmit the property to the department of health and family services, if the conditions in
sub. (1) (a) 1. to
4. are satisfied, upon receipt of an affidavit by a person designated by the secretary of health and family services to administer this section showing that the department paid on behalf of the decedent or the decedent's spouse recoverable benefits specified in
sub. (1) (a). Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.
867.035(2m)(a)(a) If the conditions in
sub. (1) (a) 1.,
2., and
4. are satisfied, the department of health and family services shall have a lien in the amount that it may recover under
sub. (1) (a) on any interest in the decedent's home, as defined in
s. 49.496 (1) (b), transferred under
s. 867.03 (1g). The department may record the lien in the office of the register of deeds of the county in which the real property is located. The department may enforce the lien by foreclosure in the same manner as a mortgage on real property, unless any of the following is alive:
867.035(2m)(b)
(b) If the conditions in
sub. (1) (a) 1. to
4. are satisfied, the department of health and family services shall have a lien in the amount that it may recover under
sub. (1) (a) on any interest in any real property of the decedent transferred under
s. 867.03 (1g). The department may record the lien in the office of the register of deeds of the county in which the real property is located and may enforce the lien by foreclosure in the same manner as a mortgage on real property.
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 (4) (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).
867.035(5)
(5) The department of health and family services shall promulgate rules establishing standards to determine whether the application of this section would work an undue hardship in individual cases. If the department of health and family services determines that the application of this section would work an undue hardship in a particular case, the department shall waive the application of this section in that case.
867.04
867.04
Termination of joint tenancy and life estate. If a domiciliary of this state dies who immediately prior to death had an estate for life or an interest as a joint tenant in any property, or if a person not domiciled in this state dies having such an interest in property in this state, upon petition of any person interested in the property 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 life or joint tenant, the termination of the life estate or joint tenancy interest, the right of survivorship of any joint tenant 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 that is secured by an interest in real property, a certified copy or duplicate original of the certificate 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.
867.04 History
History: 1977 c. 449;
1999 a. 85.
867.04 Cross-reference
Cross-reference: See s.
863.27 which deals with the termination of life estate and joint tenancy in the final judgment of an estate.
867.04 Cross-reference
Cross-reference: See s.
865.20 which provides an alternative method of termination of joint tenancy.
867.045
867.045
Administrative joint tenancy or life estate termination for certain property. 867.045(1)
(1) 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 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 the date of the decedent's death. The surviving joint tenant or remainderman shall provide to the register of deeds the following information:
867.045(1)(j)
(j) In the case of real property, a copy of the property tax bill for the year preceding the year of the decedent's death and a legal description of the property, which description shall be imprinted on or attached to the application. The register of deeds shall record the bill.
867.045(1)(k)
(k) In the case of a joint tenancy or life estate, a copy of the deed that creates the interest.
867.045(2)
(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 appeared before him or her and verified, under oath, the correctness of the information required by
sub. (1).
867.045(3)
(3) The register of deeds shall then mail, or deliver, copies of such application to the circuit court for the county of residence of the decedent, unless the clerk of courts notifies the register of deeds in writing that this procedure is unnecessary.
867.045(4)
(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.
867.045 Cross-reference
Cross-reference: See s.
865.20 which provides an alternative method of termination of joint tenancy.
867.045 Annotation
The termination of a joint tenancy in a vendee's interest in a land contract may be perfected of record under the procedure in s. 867.045.
OAG 1-97.
867.045 Annotation
This section neither requires that all remainderpersons appear before the register of deeds to verify information contained in a form executed to meet the requirements of this section nor to complete the form before it may be recorded.
OAG 2-98.
867.046
867.046
Summary confirmation of interest in property. 867.046(1)(a)
(a) "Beneficiary of a marital property agreement" means a designated person, trust or other entity having an interest in property passing by nontestamentary disposition under
s. 766.58 (3) (f).
867.046(1m)
(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 if a person not domiciled in this state dies having an interest in property in this state, including an interest in survivorship marital property, upon petition of the decedent's spouse or upon petition of a beneficiary of a marital property agreement 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.
867.046(2)
(2) Upon death; interest in property. 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, including an interest in survivorship marital property, the decedent's spouse or a beneficiary of a marital property agreement 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:
867.046(2)(a)
(a) The name, residence and post-office addresses of the decedent and the applicant.
867.046(2)(i)
(i) In the case of real property, a copy of the property tax bill for the year preceding the year of the decedent's death and a legal description of the property, which description shall be imprinted on or attached to the application. The register of deeds shall record the bill.
867.046(2)(j)
(j) In the case of a joint tenancy or life estate, a copy of the deed that creates the interest.
867.046(2m)
(2m) Third-party confirmation. If the personal representative, decedent's spouse or a beneficiary of a marital property agreement does not commence proceedings to confirm an interest under this section or
s. 863.27 or
865.201 within 90 days after the decedent's death, any interested person may petition or apply under this section.
867.046(3)
(3) Completion of application. 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 applicant or, if the applicant is not an individual, a representative of the applicant appeared before him or her and verified, under oath, the correctness of the information required by
sub. (2).
867.046(4)
(4) Delivery of application. The register of deeds shall mail or deliver a copy of the application to the circuit court for the county of residence of the decedent, unless the clerk of courts notifies the register of deeds in writing that this procedure is not necessary.
867.046(5)
(5) Recording; termination of property interest. Upon the recording, the application constitutes prima facie evidence of the facts recited and constitutes the termination of the property interest, 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.
867.046(6)
(6) Purchasers from petitioners protected. If an interest in property transferred under this section is acquired from the petitioner by a purchaser or lender in good faith, for value and without actual notice that the transfer was improper, the purchaser or lender takes title free of any claims of the decedent's estate and incurs no personal liability to the estate, whether or not the transfer was proper. Purchasers and lenders have no duty to inquire whether a transfer was proper.
867.046 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
867.05
867.05
Determination of descent of property.
