Chapter 851

851.74   Fees in probate matters.

851.75   Register in probate may be appointed deputy clerk.

subch. I of ch. 851 SUBCHAPTER I

DEFINITIONS

851.002 851.002 Definitions. The definitions in ss. 851.01 to 851.31 apply to chs. 851 to 882.

851.002 History History: 1979 c. 89; 1997 a. 188.

851.002 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

851.01 851.01 Administration. “Administration” means any proceeding relating to a decedent’s estate whether testate or intestate.

851.03 851.03 Beneficiary. “Beneficiary” means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.

851.035 851.035 Conscious presence. “Conscious presence” means within the range of any of a person’s senses.

851.035 History History: 1997 a. 188.

851.04 851.04 Court. “Court” means the circuit court or judge assigned to exercise probate jurisdiction.

851.04 History History: 1977 c. 449.

851.05 851.05 Decedent. “Decedent” means the deceased person whose estate is subject to administration.

851.055 851.055 Deferred marital property. “Deferred marital property” means any property that satisfies all of the following:

851.055(1) (1) Is not classified by ch. 766.

851.055(1m) (1m) Is not classified as individual property or marital property under a valid marital property agreement, unless the marital property agreement provides otherwise.

851.055(2) (2) Was acquired while the spouses were married.

851.055(3) (3) Would have been classified as marital property under ch. 766 if the property had been acquired when ch. 766 applied.

851.055 History History: 1985 a. 37; 1987 a. 393; 1997 a. 188; 2005 a. 216.

851.06 851.06 Determination date. “Determination date” has the meaning given under s. 766.01 (5).

851.06 History History: 1985 a. 37.

851.065 851.065 Devise. “Devise,” when used as a noun, means a testamentary disposition of any real or personal property by will. “Devise,” when used as a verb, means to dispose of any real or personal property by will.

851.065 History History: 1997 a. 188; 2015 a. 196.

851.07 851.07 Distributee. “Distributee” means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under the decedent’s will or under the statutes of intestate succession.

851.07 History History: 1993 a. 486.

851.08 851.08 Domestic partner. “Domestic partner” has the meaning given in s. 770.01 (1) and “domestic partnership” has the meaning given in s. 770.01 (2).

851.08 History History: 2009 a. 28.

851.09 851.09 Heir. “Heir” means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.51 (10) and (11) when the decedent was a member of a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 at the time of the decedent’s death.

851.09 History History: 1973 c. 333 s. 201m; 1993 a. 486; 1999 a. 63; 2005 a. 22.

851.11 851.11 Intestate succession. “Intestate succession” means succession to title to property of a decedent by reason of ch. 852, without regard to whether the property descends or is distributed.

851.13 851.13 Issue. “Issue” means children, grandchildren, great-grandchildren, and lineal descendants of more remote degrees, including those who occupy that relation by reason of adoption under s. 854.20 and nonmarital children and their lineal descendants to the extent provided by s. 852.05.

851.13 History History: 1981 c. 391; 1983 a. 447; 1997 a. 188.

851.15 851.15 Mortgage. “Mortgage” means any agreement or arrangement in which property is used as security.

851.17 851.17 Net estate. “Net estate” means all property subject to administration less the property selected by the surviving spouse or surviving domestic partner under s. 861.33, the allowances made by the court under ss. 861.31, 861.35 and 861.41 except as those allowances are charged by the court against the intestate share of the recipient, administration, funeral and burial expenses, the amount of claims paid and federal and state estate taxes payable out of such property.

851.17 History History: 1987 a. 27; 2009 a. 28.

851.19 851.19 Person. “Person” includes natural persons, corporations and other organizations.

851.21 851.21 Person interested.

851.21(1) (1) Who are “persons interested”. The following are “persons interested”:

851.21(1)(a) (a) An heir of the decedent.

851.21(1)(b) (b) Except as provided in s. 853.32 (2) (e), a beneficiary named in any document offered for probate as the will of the decedent and includes a person named or acting as a trustee of any trust, inter vivos or testamentary, named as a beneficiary.

851.21(1)(c) (c) A beneficiary of a trust created under any document offered for probate as the will of the decedent.

851.21(1)(d) (d) A person named as personal representative in any document offered for probate as the will of the decedent.

851.21(1)(e) (e) Additional persons as the court by order includes as “interested persons”.

851.21(2) (2) Who cease to be “persons interested”. The following cease to be “persons interested”:

851.21(2)(a) (a) An heir of the decedent who is not a beneficiary under the will of the decedent, upon admission of the will to probate under ch. 856 or entry of a statement of informal administration under ch. 865.

851.21(2)(b) (b) A beneficiary named in documents offered for probate as the will of the decedent who is not an heir of the decedent, upon denial of probate to such documents.

851.21(2)(c) (c) A person named as personal representative or testamentary trustee in the will of the decedent, upon the person’s failure to be appointed, the denial of letters by the court, or upon the person’s discharge.

851.21(2)(d) (d) A beneficiary under the will of a decedent, upon full distribution to the beneficiary.

851.21(2)(e) (e) A beneficiary of a trust created under documents offered for probate as the will of the decedent upon the admission of the decedent’s will to probate and the court’s appointment of the trustee.

851.21(2)(f) (f) A parent who is barred from inheriting from his or her child’s intestate estate under s. 852.14 (3).

851.21(3) (3) Additional persons interested. In any proceedings in which the interest of a trustee of an inter vivos or testamentary trust, including a trust under documents offered for probate, conflicts with the trustee’s duty as a personal representative, or in which the trustee or competent beneficiary of the trust cannot represent the interest of the beneficiary under the doctrine of virtual representation, the beneficiary is a person interested in the proceedings.

851.21 History History: 1973 c. 39; 1993 a. 486; 2005 a. 216; 2015 a. 224; 2023 a. 127.

851.23 851.23 Personal representative. “Personal representative” means any person to whom letters to administer a decedent’s estate have been granted by the court or by the probate registrar under ch. 865, but does not include a special administrator.

851.23 History History: 1973 c. 39.

851.27 851.27 Property. “Property” means any interest, legal or equitable, in real or personal property, without distinction as to kind, including money, rights of a beneficiary under a contractual arrangement, choses in action, digital property, as defined in s. 711.03 (10), and anything else that may be the subject of ownership.

851.27 History History: 1997 a. 188; 2015 a. 300.

851.29 851.29 Sale. “Sale” includes an option or agreement to transfer whether the consideration is cash or credit. It includes exchange, partition and settlement of title disputes. The intent of this section is to extend and not to limit the meaning of “sale”.

851.295 851.295 Surviving domestic partner. “Surviving domestic partner” means a person who was in a domestic partnership under ch. 770 with the decedent, at the time of the decedent’s death.

851.295 History History: 2009 a. 28.

851.30 851.30 Surviving spouse.

851.30(1) (1) Subject to sub. (2), “surviving spouse” means a person who was married to the decedent at the time of the decedent’s death.

851.30(2) (2) “Surviving spouse” does not include any of the following:

851.30(2)(a) (a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each other or they subsequently hold themselves out as husband and wife.

851.30(2)(b) (b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a 3rd individual.

851.30(2)(c) (c) An individual who was party to a valid proceeding concluded by an order purporting to terminate all property rights based on the marriage.

851.30 History History: 1997 a. 188.

851.31 851.31 Will. Unless the context or subject matter indicates otherwise, “will” includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2). “Will” does not include a copy, unless the copy has been proven as a will under s. 856.17, but “will” does include a properly executed duplicate original.

851.31 History History: 1997 a. 188; 2005 a. 216.

subch. II of ch. 851 SUBCHAPTER II

GENERAL PROBATE PROVISIONS

851.40 851.40 Basis for attorney fees.

851.40(1) (1) Any attorney performing services for the estate of a deceased person in any proceeding under chs. 851 to 879, including a proceeding for informal administration under ch. 865, shall be entitled to just and reasonable compensation for such services.

851.40(2) (2) Any personal representative, heir, beneficiary under a will or other interested party may petition the court to review any attorney’s fee which is subject to sub. (1). If the decedent died intestate or the testator’s will contains no provision concerning attorney fees, the court shall consider the following factors in determining what is a just and reasonable attorney’s fee:

851.40(2)(a) (a) The time and labor required.

851.40(2)(b) (b) The experience and knowledge of the attorney.

851.40(2)(c) (c) The complexity and novelty of the problems involved.

851.40(2)(d) (d) The extent of the responsibilities assumed and the results obtained.

851.40(2)(e) (e) The sufficiency of assets properly available to pay for the services, except that the value of the estate may not be the controlling factor.

851.40 History History: 1975 c. 329; 1993 a. 490.

851.40 Cross-reference Cross-reference: See s. 865.16 (1m) review of attorney fees by the probate registrar.

851.40 Annotation An attorney’s failure to communicate with one of the heirs, in violation of a court order, was an appropriate basis for reducing attorney fees. In Matter of Estate of Huehne, 175 Wis. 2d 33, 498 N.W.2d 870 (Ct. App. 1993).

851.40 Annotation An attorney’s fee based on a contract to pay the attorney 4 percent of the gross estate violated sub. (2) (e). Reduction was a proper exercise of judicial discretion. Estate of Konopka, 175 Wis. 2d 100, 498 N.W.2d 853 (Ct. App. 1993).

851.40 Annotation Sub. (1) did not authorize payment for an attorney’s services when it was in the estate’s interest to let the interested parties litigate an issue and when, if the attorney’s position prevailed, no property would have been added to the estate. Bell v. Neugart, 2002 WI App 180, 256 Wis. 2d 969, 650 N.W.2d 52, 01-2533.

851.40 Annotation Professional responsibility and probate practices. Martin, 1975 WLR 911.

851.50 851.50 Status of adopted persons. The status of adopted persons for purposes of inheritance and transfers under wills or other governing instruments, as defined in s. 854.01 (2), is governed by ss. 854.20 and 854.21.

851.50 History History: 1997 a. 188; 2005 a. 216.

851.55 851.55 Simultaneous death. The transfer of or title to property that depends upon priority of death with respect to 2 or more persons who die simultaneously is governed by s. 854.03.