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 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 surviving domestic partner, 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 Cross-reference
Cross-reference: See ch.
705 concerning multiple-party and agency accounts.
867.01 Cross-reference
Cross-reference: See s.
856.01 for jurisdiction for administration of estates.
867.01 Cross-reference
Cross-reference: See s.
54.66 (4), which provides for summary closing by guardian of small estate of ward.
867.01 Cross-reference
Cross-reference: See s.
103.165 (3) for payment of decedent's employee's cash bond by employer directly to decedent's dependents.
867.01 Annotation
A "Simple" Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin's Statutes for Probate Summary Procedures. Johnson. 2008 WLR 612.
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 $50,000 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)(ac)(ac)
Who may petition. 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)(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 all property subject to administration, including any encumbrance, lien, or other charge upon each item.
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 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).
867.02 Annotation
A "Simple" Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin's Statutes for Probate Summary Procedures. Johnson. 2008 WLR 575.
867.03
867.03
Transfer by affidavit. 867.03(1g)
(1g) Generally. When a decedent leaves property subject to administration in this state which does not exceed $50,000 in value, any heir of the decedent, trustee of a revocable trust created by 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, trustee, 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 subject to administration in this state at the date of decedent's death.
867.03(1m)(a)(a) Whenever an heir, trustee, 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 services provided as a benefit under a long-term care program, as defined in
s. 49.496 (1) (bk), 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, trustee, or person who was guardian of the decedent at the time of the decedent's death shall give notice to the department of health services of his or her intent. The notice shall include the information in the affidavit under
sub. (1g) and the heir, trustee, 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, trustee, 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 services provided as a benefit under a long-term care program, as defined in
s. 49.496 (1) (bk), 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 the delivery date.
867.03(2)
(2) Release of liability of transferor. Upon the transfer to the heir, trustee, 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(2g)(a)(a) By accepting the decedent's property under this section the heir, trustee, or guardian assumes a duty to apply the property transferred for the payment of obligations according to priorities established under
s. 859.25 and to distribute any balance to those persons designated in the appropriate governing instrument, as defined in
s. 854.01, of the decedent or if there is no governing instrument, according to the rules of intestate succession under
ch. 852, subject to
par. (b). An heir or guardian may publish a notice to creditors in the same manner and with the same effect as a trustee under
s. 701.0508. This paragraph does not prohibit any appropriate person from requesting administration of the decedent's estate under
s. 856.07 or
ch. 865.
867.03(2g)(b)
(b) Property transferred under this section to or by an heir, trustee, or guardian is subject to the right of the department of health services to recover under
s. 46.27 (7g),
49.496,
49.682, or
49.849 an amount equal to the medical assistance that is recoverable under
s. 49.496 (3) (a), an amount equal to aid under
s. 49.68,
49.683, or
49.685 that is recoverable under
s. 49.682 (2) (a), or an amount equal to long-term community support services under
s. 46.27 that is recoverable under
s. 46.27 (7g) (c) 1. and that was paid on behalf of the decedent or the decedent's spouse. Upon request, the heir, trustee, or guardian shall provide to the department of health services information about any of the decedent's property that the heir, trustee, or guardian has distributed and information about the persons to whom the property was distributed.
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.
867.03 Annotation
A "Simple" Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin's Statutes for Probate Summary Procedures. Johnson. 2008 WLR 575.
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.
