4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Some terms are similar to section 4:04.1 and some are not. Please find the following terms which are specifically defined in Wisconsin Statutes. The statutes are numbered according to a decimal system, by which numbers preceding decimal points indicate chapters and those following indicate sections.

Administration 851.01
Beneficiary 851.03
Court 851.04
Decedent 851.05
Deferred Marital Property 851.055
Determination Date 851.06
Distributee 851.07
Heir 851.09
Intestate Succession 851.11
Issue 851.13
Mortgage 851.15
Net Estate 851.17
Person 851.19
Person Interested 851.21
Personal Representative 851.23
Property 851.27
Sale 851.29

Section 851.002 makes these definitions applicable to the Wisconsin probate code.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

There are no statutory time limits for probating a decedent's will or opening an intestate estate, but there are special procedures that may be employed six years or more after any person dies intestate. (Section 867.05).

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

The statute on intestacy, Chapter 852, awards the net estate depending on who survives. The terminology cited such as community, separate, tenancy by the entirety, dower, and curtesy are not used. See Section 861.01 for what is subject to administration and therefore in the net estate.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Joint tenancies are recognized in Wisconsin. Since 1986, the rough equivalent of a joint tenancy between spouses is called survivorship marital property. Title on the death of one joint tenant (or deceased spouse under survivorship marital property) is passed pursuant to Sections 867.04, or 867.045, or 867.046.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

There are several statutes providing benefits to a surviving spouse or family allowing them to take property contrary to will provisions. They are: 861.015, 861.02, 861.03, 861.07, 861.09, 861.13, 861.17. 861.20, 861.31, 861.33, 861.35, 861.41.

Summarize the steps required for a testate administration. Provide statutory citations.

Steps in a testate administration begin with delivery at will to court, Section 856.05; a petition for administration, Section 856.09; notice of hearing on petition, Section 856.11; proving the will, Section 856.13; order admitting will, Section 856.19; appointment of personal representative, i.e. one to whom domiciliary letters are issued, Section 856.21; bond of personal representative, Section 856.25; personal representatives rights and duties Section 857.01; an inventory, Sections 858.05 and 858.07; claim disposition, Sections 859.01 through 859.51; possible sale of assets by personal representative, Sections 860.01, 860.11, and 860.13; consideration of family and surviving spousal rights, Sections 861.015, 861.02, 861.03, 861.05, 861.09, 861.20, 861.31, 861.33, and 861.35; accounting, Sections 862.01, 862.09, 862.13, and 862.15; and closing the estate, Sections 863.01, 863.23 (determination and proof of heirship); petition for final judgment and final judgment 863.27 and 863.29.

Summarize the steps required for an intestate administration. Provide statutory citations.

The steps in an intestate administration are the same as in a testate administration other than matters germane to a will are not handled.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

There is an informal administration Sections 865.01 through 865.201; summary settlement of small estates Section 867.01; summary assignment Section 867.02; and transfer by affidavit Section 867.03.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

There are no others.

Does your state provide for an ?inheritance? tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

For estates occurring after December 31, 1991 there is no longer an inheritance tax on the property passed to others. Prior to that there was, but not as between spouses since 06-30-82. The rate was dependent on the degree of relationship to the deceased.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

A lien for inheritance tax is applicable for estates after December 31, 1991. On estates, prior to that date there was the possibility of an inheritance tax lien.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

The personal representative upon receiving the domiciliary letters may sell real property without court order during the pendency of an intestate administration. Section 860.01.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

A personal representative of a testate administration may sell real property without a court order (Section 860.01) unless the personal representative is the purchaser (Section 860.13). However, the will may specifically authorize the personal representative to be the purchaser.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

The personal representative must obtain a court order if the personal representative is the purchaser (Section 860.13) unless the will specifically authorizes the personal representative to be the purchaser.

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Section 868.01, Uniform Probate of Foreign Wills Act defines how a foreign will may be probated. This statute applies provided there is proof that the will was probated in the jurisdiction where the testator died domiciled and is not being contested there. That will is probated in Wisconsin, assuming the above proof, just as any other will.