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 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 property subject to administration 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 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 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 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 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 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 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 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 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 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 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, any person interested in the property 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 remainder beneficiary, the date of the decedent's death, and the applicant's interest in the property. The applicant 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. The required recording of the property tax bill may be waived by an agreement between the register of deeds and the county real property lister.
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 applicant 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 remainder beneficiary.
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(1)(c)
(c) "TOD beneficiary" means a person designated on a deed as a transfer on death beneficiary under
s. 705.15.
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 an interest in property passing under
s. 705.10 (1), 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 or an interest in property passing under
s. 705.10 (1), upon petition of the decedent's spouse, a beneficiary of a marital property agreement, a TOD beneficiary, or a beneficiary of a transfer under
s. 705.10 (1) 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, a mortgagee's interest in a mortgage, or an interest in property passing under
s. 705.10 (1), including an interest in survivorship marital property, the decedent's spouse, a beneficiary of a marital property agreement, a TOD beneficiary, or a beneficiary of a transfer under
s. 705.10 (1) 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. The required recording of the property tax bill may be waived by an agreement between the register of deeds and the county real property lister.
867.046(2)(j)
(j) In the case of a joint tenancy, life estate, or TOD beneficiary designation, a copy of the deed that creates the interest.
867.046(2m)
(2m) Third-party confirmation. If the personal representative or decedent's spouse or a beneficiary of a marital property agreement or TOD beneficiary 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.
867.046 Annotation
Because the pension benefits in question did not fall within the 5 classes of property specified in sub. (2), the procedures in sub. (2) could not be substituted for those of sub. (1m). Maciolek v. City of Milwaukee Employees' Retirement System Annuity and Pension Board, 2006 WI 10,
288 Wis. 2d 62,
709 N.W.2d 360,
04-1254.
867.05
867.05
Determination of descent of property. 867.05(1)
(1)
Petition. Six years or more after any person dies intestate, leaving an estate which a court in this state has jurisdiction to administer, any person interested in the estate or in any property in the estate may petition the court which has jurisdiction to administer the estate, to determine the descent of the property in the estate. The petition shall be verified and shall show, as particularly as known or can with due diligence be ascertained, the time and place of death and domicile of the decedent, that the estate has not been administered and the other facts which authorize the proceeding, the names, post-office addresses and relationship to the decedent of all heirs and their grantees entitled to any interest in the property, stating who are minors or under legal disability, and the names and addresses of their guardians, and a description of all property for which a determination of descent is sought.
867.05(2)
(2) Certificate after hearing without notice. The court may hear the petition without notice, and after hearing the evidence, if the court is satisfied who the heirs of the decedent are and what their respective rights and interests in the property are, the court shall certify the same and in its certificate shall name the persons entitled to interests therein and the property to which each is entitled. The certificate is prima facie evidence of the facts recited.
867.05(3)
(3) Judgment after hearing on notice. The court may hear the petition after notice of hearing given under
s. 879.03, and after hearing the evidence, if the court is satisfied who the heirs of the decedent are and what their respective rights and interests in the property are, the court shall determine the same and in its judgment shall name the persons entitled to interests therein and the property to which each is entitled.
867.05(4)
(4) Recording required. Whenever the certificate or judgment 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 certificate or judgment 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.
867.05(5)
(5) Special administration. When no administration proceeding has been commenced or no complete tax return has been filed, any person, including the department of revenue, interested in the property, the transfer of which is subject to tax under
ch. 72, may petition for appointment of a special administrator with powers to determine the tax, if:
867.05(5)(a)
(a) No petition for administration of property of a decedent is made within 60 days after the decedent's death and the property's transfer appears to be taxable under
ch. 72;
867.05(5)(b)
(b) Administration has been completed without determining the tax;
867.05(5)(c)
(c) No tax is due and that fact has not been formally determined;
867.05(5)(e)
(e) Assets upon the transfer of which no tax has been paid are discovered; or
867.05(5)(f)
(f) Property was transferred in contemplation of the death of the transferor and no application for the adjustment or payment of the tax has been made within 60 days of the transferor's death.
867.05(6)(a)(a) Prior to acting under
sub. (5), the special administrator shall, by certified mail, notify the distributee of the basis of his or her authority under
sub. (5).
867.05(6)(c)
(c) Costs and expenses properly incurred by a special administrator shall be paid out of the subject property or by the distributee thereof.
867.07
867.07
Grounds for appointment of special administrator. Whenever it appears by petition to the court that a person has died and the court would have jurisdiction for the administration of the person's estate, the court may appoint a special administrator if it appears that:
867.07(1)
(1) There is no estate to be administered and an act should be performed on the part of the decedent, the performance of which affects or is of importance to the petitioner or any other person.
867.07(2)
(2) The final judgment of distribution in the estate has been entered and an act remains unperformed in the estate, or that unadministered assets have been found or may be found belonging to the estate.
867.07(4)
(4) It is necessary to conserve or administer the estate of a decedent before letters can be issued to a personal representative.
867.07(6)
(6) A cause of action exists for or against the decedent or the decedent's estate and that it is necessary that some act be performed before letters can be issued to a personal representative.
867.07(7)
(7) Other circumstances exist which in the discretion of the court require the appointment of a special administrator.
867.07 Cross-reference
Cross-reference: See s.
856.01 for jurisdiction for administration of estates.
867.07 Annotation
This section does not provide a different procedure for taking depositions than that provided in ch. 804. In Matter of Estate of Berth,
157 Wis. 2d 717,
460 N.W.2d 436 (Ct. App. 1990).
867.09
867.09
Who may petition for appointment of special administrator. Petition for the appointment of a special administrator may be made by any person who has standing to petition for administration of the estate under
s. 856.07, and waiting periods stated in that section do not apply.
867.11
867.11
Notice of hearing on petition for appointment of special administrator. The court shall determine whether notice of the hearing for the appointment of a special administrator need be given. If the court deems notice unnecessary or inexpedient or if the appointment should be made without delay, the court shall proceed to hear the matter without notice. If notice of hearing is required, it shall be given under
s. 879.03.
