Chapter 879

879.23   Guardian ad litem.

879.25   Attorney for person in military service.

879.26   Waiver of right to certain documents.

879.27   Appeals.

879.31   Relief from judgment or order.

879.33   Costs, if allowed; judgment for.

879.35   Costs in will contests.

879.37   Attorney fees in contests.

879.39   Security and judgment for costs.

879.41   Fees in court.

879.43   Money judgment in favor of estate.

879.45   Jury trials, practice.

879.47   Papers, preparation and filing.

879.49   Papers, withdrawal.

879.51   Court not to delay in setting matter for hearing.

879.53   Hearings set for a day certain.

879.55   Correction of clerical errors in court records.

879.57   Special administrator; personal representative, guardian.

879.59   Compromises.

879.61   Discovery proceedings.

879.63   Action by person interested to secure property for estate.

879.67   Out-of-state service on personal representative.

879.69   Court must rule on petition.

Ch. 879 Cross-reference Cross-reference: See definitions in ch. 851.

879.01 879.01 Petitions to court. All applications to courts, except motions in matters at issue, shall be made by verified petition. All petitions must show the jurisdiction of the court and the interest of the petitioner. All petitions, except those for statutory certificates or for ex parte orders in proceedings already pending, shall also show the names and post-office addresses of all persons interested, so far as known to the petitioner or ascertainable by him or her with reasonable diligence; and shall indicate who are minors or otherwise under disability, and the names and post-office addresses of their guardians. No defect of form or substance in any petition may invalidate any proceedings.

879.01 History History: 1977 c. 449.

879.01 Annotation An “action” under s. 801.01 includes a special proceeding such as probate. In Matter of Estate of Martz, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992).

879.01 Annotation In probate actions, as in civil cases generally, the burden is on the petitioner to move the case forward. Theis v. Short, 2010 WI App 108, 328 Wis. 2d 162, 789 N.W.2d 585, 09-1591.

879.03 879.03 Notice; court order.

879.03(1) (1) How given. If notice of any proceeding in court or informal administration is required by law or deemed necessary by the court or the probate registrar under informal administration proceedings and the manner of giving notice is not directed by law, the court or the probate registrar shall order notice to be given under s. 879.05. The court or the probate registrar may order both service by publication and personal service on designated persons.

879.03(2) (2) Who entitled to notice. The following persons are entitled to notice:

879.03(2)(a) (a) Each person interested unless represented by a guardian ad litem or guardian of the estate or unless represented by another person under the doctrine of virtual representation under s. 879.23 (5).

879.03(2)(b) (b) Any guardian ad litem, guardian of the estate or attorney, or attorney-in-fact, for a person in the military service that represents any person interested.

879.03(2)(c) (c) The attorney general where a charitable trust, as defined in s. 701.0103 (4), is involved, and in all cases mentioned in s. 852.01 (3).

879.03(3) (3) Domiciliary of a foreign country. If the petition for administration shows, or if it appears, that any person interested is a domiciliary of a foreign country and the address of the person is unknown, the court shall cause the notice of hearing of the petition or of any subsequent proceeding that may then be pending to be given the consul, vice consul or consular agent of the foreign country by mailing a copy of the notice in a sealed envelope, postage prepaid, addressed to the consul, vice consul or consular agent at his or her post-office address, at least 20 days before the hearing. If it is shown to the court that there is no consul, vice consul or consular agent of the foreign country, the court may direct that the notice be so mailed to the attorney general.

879.03(4) (4) When order does not specifically designate persons interested. If the order does not specifically designate the persons to whom notice is to be given, the order shall be deemed to refer to the persons set forth in the petition for the hearing or otherwise shown by the record as being persons interested and to the post-office addresses set forth or otherwise shown therein. The order and record shall be conclusive in all collateral actions and proceedings as to the names being the names of all persons interested and as to the reasonable diligence of the personal representative in determining the post-office addresses.

879.03(5) (5) Unknown persons or addresses. Where the post-office address of a person interested is not known or reasonably ascertainable, or the names of persons interested are unknown, the notice shall so state and such statement shall be included in the publication thereof.

879.03 History History: 1973 c. 90, 233, 336; 1975 c. 198 s. 65; 1975 c. 421; 1977 c. 73, 449; 1983 a. 189 s. 329 (26); 1991 a. 220; 1993 a. 486; 2013 a. 92.

879.03 Cross-reference Cross-reference: See s. 851.21 which defines “persons interested”.

879.03 Cross-reference Cross-reference: See s. 856.11, which requires notice to both an interested person and his guardian ad litem or guardian of the estate when giving notice of hearing on petition for administration.

879.05 879.05 Notice; manner of giving.

879.05(1) (1) Generally. Unless the statute requiring notice in a particular proceeding provides otherwise, notice required in the administration of an estate or other proceeding shall be given either by mail under sub. (2) or by personal service under sub. (3). The first notice given by mail in any administration or other proceeding must be accompanied by notice by publication given under sub. (4). Notice by publication in addition to mailed notice is required for subsequent hearings if the name or the post-office address of one or more persons entitled to notice has not been ascertained.

879.05(2) (2) Service by mail. Service shall be made by first class mail either within or without the state at least 20 days before the hearing or proceeding upon any person whose post-office address is known or can with reasonable diligence be ascertained.

879.05(3) (3) Personal service. Personal service shall be made at least 10 days before the hearing under s. 801.11, except as that section provides for service by publication and except that substituted service under s. 801.11 (1) (b) may not be made outside this state.

879.05(4) (4) Service by publication. Unless a statute provides otherwise, every court notice required to be given by publication shall be published as a class 3 notice in a newspaper published in the county, eligible under ch. 985, as the court by order directs.

879.05 History History: 1973 c. 12; Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 449.

879.05 Annotation When heirs at law had not been heard from for 30 to 40 years, published notice of hearing on proof of the will was legal notice to the heirs under s. 856.11. In re Estate of Phillips, 92 Wis. 2d 354, 284 N.W.2d 908 (1979).

879.07 879.07 Proof of service of notice.

879.07(1) (1) Mail. Proof of service by mail shall be by the affidavit of the person who mailed the notice showing when and to whom the person mailed it and how it was addressed.

879.07(2) (2) Personal service. Proof of personal service shall be made under s. 801.10 or by the written admission of service by the person served if competent and an adult, and the subscription of the person’s name to the admission is presumptive evidence of its genuineness.

879.07(3) (3) Publication. Proof of service by publication shall be by affidavit under s. 985.12.

879.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 783 (1979); 1975 c. 218; 1993 a. 486.

879.09 879.09 Notice requirement satisfied by waiver of notice. Persons who are not minors or individuals adjudicated incompetent, on behalf of themselves, and appointed guardians ad litem and guardians of the estate on behalf of themselves and those whom they represent, may in writing waive the service of notice upon them and consent to the hearing of any matter without notice. An attorney, or attorney-in-fact, for a person in the military service may waive notice on behalf of himself or herself but cannot waive notice on behalf of the person in the military service. Waiver of notice by any person is equivalent to timely service of notice.

879.09 History History: 1991 a. 220; 2005 a. 216, 387; 2007 a. 97.

879.09 Annotation The court’s decision not to use the issuing judge’s name in the caption of the action in order to prevent prejudice was within the court’s discretion. Estate of Burgess v. Peterson, 196 Wis. 2d 55, 537 N.W.2d 115 (Ct. App. 1995), 94-3043.

879.11 879.11 Notice requirement satisfied by appearance. An appearance by a person who is not a minor or an individual adjudicated incompetent is equivalent to timely service of notice upon the person. An appearance by a guardian of the estate is equivalent to timely service of notice upon the guardian and upon the guardian’s ward. An appearance by a guardian ad litem is equivalent to timely service of notice upon the guardian ad litem and except at a hearing to prove a will or for administration is equivalent to timely service of notice upon those whom the guardian ad litem represents. An appearance by an attorney, or an attorney-in-fact, for a person in the military service is equivalent to timely service of notice upon the attorney or attorney-in-fact but does not satisfy a requirement for notice to the person in the military service.

879.11 History History: 1991 a. 220; 1993 a. 486; 2005 a. 387.

879.13 879.13 Delayed service of notice. If for any reason notice to any person, including a minor or an individual adjudicated incompetent, is insufficient, the court may at any time order service of notice together with documents required under ss. 858.03 and 862.09 and, where required, appoint a guardian ad litem under s. 879.23 and require the person or the person’s guardian ad litem to show cause why the person should not be bound by the action already taken in the proceedings as though the person had been timely served with notice. Such person may consent in writing to be bound.

879.13 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); 1993 a. 486; 2005 a. 387.

879.13 Note Comment of Judicial Council, 1971: This amendment makes it clear that these provisions apply to minors and incompetents. The cross-reference change is corrective. [Re Order effective July 1, 1971]

879.15 879.15 Appearances, how made. In any proceeding in the court, appearances shall be made as follows:

879.15(1) (1) A minor or individual adjudicated incompetent shall appear by a guardian ad litem or by the guardian of his or her estate, who may appear by attorney, or by another person under the doctrine of virtual representation as provided in s. 879.23 (5);

879.15(2) (2) A personal representative shall appear by attorney; and

879.15(3) (3) Every other person shall appear in person, by attorney or, if in the military service, by an attorney-in-fact.

879.15 History History: 1973 c. 233; 1975 c. 198 s. 65; 1975 c. 421; 1977 c. 449; 1991 a. 220; 2005 a. 387.

879.15 Cross-reference Cross-reference: See s. 879.23 for provision authorizing appointment of surviving parent as guardian ad litem.

879.17 879.17 Attorney, appearance by. The attorney who first appears for any party or person interested shall be recognized as the attorney throughout the matter or proceeding unless another attorney is substituted under SCR 11.02 (3).

879.17 History History: 1977 c. 187 s. 135; 1977 c. 273; Sup. Ct. Order, eff. 1-1-80.

879.17 Annotation An executor who asked for substitution when probate had just been begun because the heirs desired it and to avoid conflict with them had shown sufficient cause for changing attorneys. Estate of Ainsworth, 52 Wis. 2d 152, 187 N.W.2d 828, 189 N.W.2d 505 (1971).

879.19 879.19 Attorney, notice to. Except for a person in the military service, as provided in s. 879.09, if a person interested who is not a minor or an individual adjudicated incompetent has retained an attorney to represent him or her and the attorney has mailed a notice of retainer and request for service to the attorney for the personal representative and filed a copy with the court, any notice that would be given to the person interested shall instead be given to the attorney, and the attorney may waive notice for the person interested under s. 879.09.

879.19 History History: 1991 a. 220; 1993 a. 486; 2005 a. 387.

879.21 879.21 Appearance for person domiciled in foreign country. When notice has been given to the attorney general under s. 879.03 (3) that a person domiciled in a foreign country, not represented by a consul, vice consul or consular agent, is interested in an estate, the attorney general shall appear for the person and be allowed compensation and necessary expenditures in the same manner as a guardian ad litem.

879.21 History History: 1973 c. 90; 1993 a. 486.

879.23 879.23 Guardian ad litem.

879.23(1) (1) Virtual representation. A guardian ad litem shall be appointed for any person interested who is a minor or an individual adjudicated incompetent and has no guardian of his or her estate, or where the guardian of the minor’s or individual’s estate fails to appear on the minor’s or individual’s behalf or where the interest of the minor or individual is adverse to that of the guardian of the minor’s or individual’s estate. A guardian ad litem may be appointed for persons not in being or presently unascertainable. A guardian ad litem shall not be appointed or appear in the same matter for different persons whose interests are conflicting.

879.23(2) (2) Time of appointment. The court may appoint the guardian ad litem at the time of making the order for hearing the matter, and require notice of the appointment and of the hearing to be served upon the guardian ad litem; or the guardian ad litem may be appointed on the day of the hearing and before any proceedings are had.

879.23(3) (3) Duration of appointment. The guardian ad litem shall continue to act throughout the proceeding in relation to the same estate or matter until proper distribution has been made to or for the benefit of the person the guardian ad litem represents, unless earlier discharged by the court. A guardian ad litem shall be discharged by the court when it appears that the minority or incompetency has terminated or when it appears that the person the guardian ad litem represents no longer has an interest in the estate or matter. If a will creates a trust, a guardian ad litem appointed in the administration of the estate has no responsibility in regard to the administration of the testamentary trust unless reappointed for that purpose.

879.23(4) (4) Who may serve.

879.23(4)(a) (a) Except as provided in par. (b) or (c), the guardian ad litem appointed under this section shall be either an attorney admitted to practice in this state or a parent or child of the minor or individual adjudicated incompetent to be represented by the guardian ad litem. A parent or child of the person to be represented may be appointed the guardian ad litem under this section only if the court finds either that the prospective guardian ad litem is an attorney admitted to practice in this state or is otherwise suitably qualified to perform the functions of the guardian ad litem.

879.23(4)(b) (b) In matters relating to the probate of an estate in which a minor has an interest that is unlikely to exceed $10,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If no parent of the minor is qualified and willing to serve as guardian ad litem, the guardian ad litem shall be an attorney as provided in par. (a).

879.23(4)(c) (c) In matters relating to the probate of an estate in which an individual adjudicated incompetent has an interest that is unlikely to exceed $1,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If the court finds that no surviving parent is qualified and willing to serve, the guardian ad litem shall be an adult child of the individual, unless the court finds that no adult child of the individual is qualified and willing to serve as the guardian ad litem. If the court finds that neither a parent nor an adult child of the individual adjudicated incompetent is qualified and willing to serve as the guardian ad litem, the court shall appoint an attorney as provided in par. (a).

879.23(4)(d) (d) The guardian ad litem may be allowed reasonable compensation and may be allowed reimbursement for necessary disbursements, the amount of which shall be set by the court and paid out of the estate.

879.23(5) (5) Virtual representation. The court may dispense with or terminate the appointment of a guardian ad litem for an interested person who is a minor, an individual adjudicated incompetent, not in being, or presently unascertainable, if there is a living person, of full legal rights and capacity, who is a party to the proceeding and has a substantially identical interest in it.

879.23 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); 1973 c. 233; 1977 c. 299; 1979 c. 110 s. 60 (2); 1993 a. 486; 1995 a. 225; 1997 a. 290; 2005 a. 387.

879.23 Cross-reference Cross-reference: See s. 757.48 for general provisions on guardian ad litem.

879.23 Annotation Factors for determining a reasonable number of hours that a guardian ad litem spent on a case are discussed. The guardian ad litem is entitled to compensation for collecting a fee to the extent that the estate’s opposition to the fee was unreasonable. In Matter of Estate of Trotalli, 123 Wis. 2d 340, 366 N.W.2d 879 (1985).

879.25 879.25 Attorney for person in military service. At the time of filing a petition for administration of an estate, an affidavit shall be filed setting forth facts showing whether any person interested in the matter is actively engaged in the military service of the United States. Whenever it appears by the affidavit or otherwise that any person in the active military service of the United States is interested in an administration and is not represented by an attorney, or by an attorney-in-fact who is duly authorized to act on his or her behalf in the matter, the judge shall appoint an attorney to represent the person and protect his interest, and no further proceedings shall be had until such appointment has been made. The attorney who is appointed for the person in the military service shall be an attorney admitted to practice in this state and shall be allowed compensation and necessary expenditures to be fixed by the court and paid out of the estate.

879.25 History History: 1973 c. 233; 1991 a. 220.