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]
Appearances, how made.
In any proceeding in the court, appearances shall be made as follows:
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)
A personal representative shall appear by attorney; and
Every other person shall appear in person, by attorney or, if in the military service, by an attorney-in-fact.
See s. 879.23
for provision authorizing appointment of surviving parent as guardian ad litem.
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
History: 1977 c. 187
; 1977 c. 273
; Sup. Ct. Order, eff. 1-1-80.
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
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
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.
History: 1973 c. 90
; 1993 a. 486
Guardian ad litem. 879.23(1)(1)
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.
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.
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.
Except as provided in par. (b)
, 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.
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)
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)
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.
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.
See s. 757.48
for general provisions on guardian ad litem.
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
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.
History: 1973 c. 233
; 1991 a. 220
Waiver of right to certain documents.
Any person who is not a minor or an individual adjudicated incompetent may in writing waive the person's right to be given a statement that the inventory has been filed under s. 858.03
and a copy of accounts under s. 862.11
Appeal is to the court of appeals.
Any person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal or take a writ of error therefrom to the court of appeals.
Effect of chs. 801 to 847.
In all matters not otherwise provided for in this chapter relating to appeals from courts assigned to exercise probate jurisdiction to the court of appeals, the law and rules of practice of chs. 801
Who may appeal on behalf of minor or individual adjudicated incompetent.
In all cases the appeal on behalf of any minor or individual adjudicated incompetent may be taken and prosecuted by the guardian of the minor's or individual's estate or by a guardian ad litem.
Limitation on bond and costs.
On appeals from courts assigned to exercise probate jurisdiction to the court of appeals no bond may be required of, or costs awarded against, any alleged incompetent individual or person acting in behalf of an alleged incompetent individual on an appeal from an adjudication of incompetency, and no bond may be required of any personal representative, guardian, or trustee of a testamentary trust.
Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 187
; 1979 c. 89
; 1983 a. 219
; 1993 a. 486
; 2005 a. 387
Judicial Council Note, 1983: Sub. (3) providing an appeal deadline of 60 days from entry of order or judgment in probate proceedings, has been repealed for greater uniformity. An appeal must be initiated within the time period specified in s. 808.04 (1). [Bill 151-S]
A memorandum decision in a probate proceeding was treated as an order terminating the proceeding and therefore appealable although no separate order was entered when it appeared that the memorandum decision was clearly intended to be a final ruling. Estate of Boerner, 46 Wis. 2d 183
, 174 N.W.2d 457
The agents of an incompetent named in her health care and durable power of attorney documents had standing to appeal under sub. (1). Because they were agents under these two documents, they were substitutes for the incompetent for purposes of sub. (1). Guardianship of Muriel K. 2002 WI 27
, 251 Wis. 2d 10
, 640 N.W.2d 773
Final orders and final judgments in probate cases should state that they are final for the purposes of an appeal, if that is the intention of the parties involved and of the circuit court. Sanders v. Estate of Sanders, 2008 WI 63
, 310 Wis. 2d 175
, 750 N.W.2d 806
Relief from judgment or order.
On motion, notice to adverse parties and hearing, the court may relieve a party or legal representative from a judgment or orders of the court or the party's stipulation as provided in s. 806.07
History: 1983 a. 219
Costs, if allowed; judgment for.
Costs may be allowed in all appealable contested matters in court to the prevailing party, to be paid by the losing party or out of the estate as justice may require; and if costs are allowed they shall be taxed by the register in probate after the notice required in ch. 814
. If costs are allowed, the court shall render judgment therefor, stating in whose favor and against whom rendered and the amount, and a list of the items making the amount shall be filed with the papers in the case. Costs shall not be taxed against a guardian ad litem, except as provided in s. 814.14
Sup. Ct. Order, 50 Wis. 2d vii (1971); Sup. Ct. Order, 67 Wis. 2d 783; 1977 c. 449
Comment of Judicial Council, 1971: Generally, costs shall not be taxed against a guardian ad litem. [Re Order effective July 1, 1971]
Nothing in this section or s. 879.37 suggests a trial is necessary for an award of attorney fees and costs. When a party concedes nothing and an opposing party capitulates before the court to the very best outcome the first party could have achieved if the matter had proceeded to trial, the first party has prevailed. Troy v. Hurkman, 2017 WI App 59
, 378 Wis. 2d 75
, 902 N.W.2d 794
Costs in will contests.
Costs may be awarded out of the estate to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
History: 1993 a. 486
; 2001 a. 102
A finding of undue influence on the part of the unsuccessful proponent disqualifies the proponent from asserting “good faith" under the statute. In re Estate of Christen, 72 Wis. 2d 8
, 239 N.W.2d 528
Attorney fees in contests.
Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
History: 1993 a. 486
; 2001 a. 102
A finding of undue influence on the part of the unsuccessful proponent disqualifies it from asserting “good faith" under this section. In re Estate of Christen, 72 Wis. 2d 8
, 239 N.W.2d 528
An objector is a prevailing party if he or she achieves some significant benefit in litigation involving a claim against the estate. The prevailing party can include multiple interested parties who register objections and defend. The awarding of attorney fees is not limited to when the personal representative fails to act or when the award benefits the estate. The award of attorney fees is discretionary. Estate of Wheeler v. Franco, 2002 WI App 190
, 256 Wis. 2d 757
, 649 N.W.2d 711
This section limits a prevailing party to recovery from the estate only. It does not allow the prevailing party to seek to recover costs and fees from the portion of the estate that is distributed to particular heirs. Bloom v. Grawoig, 2008 WI App 28
, 308 Wis. 2d 349
, 746 N.W.2d 532
There is no prevailing party and no appealable contested matter when a will contest results in settlement. As such, the trial court properly denied a party's claim for attorney fees. Wolf v. Estate of Wolf, 2009 WI App 183
, 322 Wis. 2d 674
, 777 N.W.2d 119
Nothing in s. 879.33 or this section suggests a trial is necessary for an award of attorney fees and costs. When a party concedes nothing and an opposing party capitulates before the court to the very best outcome the first party could have achieved if the matter had proceeded to trial, the first party has prevailed. Troy v. Hurkman, 2017 WI App 59
, 378 Wis. 2d 75
, 902 N.W.2d 794
Security and judgment for costs.
In all cases under s. 879.33
the court may require the claimant or contestant to give a bond in such sum and with such surety as is approved by the court, to the effect that he or she will pay all costs that may be awarded by the court in the proceeding against him or her. A judgment for costs shall be against the claimant or contestant and the surety.
History: 1977 c. 449
Fees in court.
Fees in court shall be allowed:
To appraisers, an amount to be fixed by the court;
To witnesses and interpreters, the fees under s. 814.67
, and to expert witnesses, the fees under s. 814.04 (2)
In cases not provided for, a fair compensation shall be allowed by the court.
Sup. Ct. Order, 67 Wis. 2d 585, 783 (1975); 1977 c. 187
; 1977 c. 449
; 1981 c. 317
Money judgment in favor of estate. 879.43(1)(1)
All money judgments in court in favor of an estate may be enforced through the court, after costs have been taxed under s. 814.10
. The pertinent provisions of ch. 815
, relating to executions, apply.
Stay of execution.
Execution of judgments may be stayed under chs. 801
Judgments may be entered in the judgment and lien docket in the office of the clerk of circuit court, upon the filing of a certified transcript of the judgment.
A judgment entered in the judgment and lien docket creates a lien upon the real estate of the debtor under s. 806.15
Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 449
; 1979 c. 89
; 1995 a. 224
Jury trials, practice. 879.45(1)(1)
Jury trials may be had in court in all cases in which a jury trial may be had of similar issues under s. 805.01 (1)
In all cases under sub. (1)
, any person having the right of appeal from the determination of the court may file with the court, within 10 days after notice that the matter is to be contested, a written demand for a jury trial.
Upon filing the demand and receipt, the court may order an issue to be framed by the parties within a fixed time, and the matter shall be placed upon the calendar.
In all jury cases costs shall be allowed as a matter of course to the prevailing party.
Selection of jurors.
Jurors shall be selected under ch. 756
and trials by jury shall be under ch. 805
At the request of the court, the clerk shall prepare, in the order of their date of issue, a list of cases in which a trial by jury has been demanded. The list shall constitute a jury calendar. In case a continuance in any action upon the jury calendar is asked by any party, the court may grant the continuance and require payment of $10 motion fees.
The court may hold a pretrial conference under s. 802.10 (5)
Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 418
s. 929 (8m)
; 1977 c. 447
; 1977 c. 449
; 1979 c. 32
; 1981 c. 391
; Sup. Ct. Order No. 95-04
, 191 Wis. 2d xxi (1995); Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997).
Papers, preparation and filing. 879.47(1)(1)
The attorney for any person desiring to file any paper in court is responsible for the preparation of the paper. Except as provided in sub. (2)
, all papers shall be legibly written on substantial paper and shall state the title of the proceeding in which they are filed and the character of the paper. Either uniform forms or computer-generated forms, if the forms exactly recreate the original forms in wording, format and substance, shall be used. If papers are not so written or if uniform forms or computer-generated forms that exactly recreate the original forms in wording, format and substance are not used, the court may refuse to receive and file them. The court shall show on all papers the date of their filing.
Trustees and cotrustees may submit to courts accounts in the format that they normally use for accounts submitted to beneficiaries under this subsection, if all of the information required by the court is included.
No paper filed in any matter may be withdrawn without leave of the court or the judge, and when a paper is withdrawn a copy thereof, attested by the judge or register in probate, shall, if required, be left in its place.