reglab/statecodes huggingface dataset:
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.018 - Definitions.

861.018
Definitions.
In this subchapter:
(1)
“Augmented deferred marital property estate" means the property under s. 861.02 (2).
(2)
“Deferred individual property" means any property that satisfies all of the following:
(a)
Is not classified by ch. 766.
(b)
Was brought to the marriage or acquired while the spouses were married.
(c)
Would have been classified as individual property under ch. 766 if the property had been acquired when ch. 766 applied.
(3)
“Nonadverse party" means a person who has a power relating to a trust or other property arrangement but who does not have a substantial beneficial interest that would be adversely affected by exercise or nonexercise of that power, except that “nonadverse party" does not include a person who has a general power of appointment over property, with respect to that property.
(4)
“Power" includes a power to designate the beneficiary of a beneficiary designation.
(5)
“Power of appointment" includes a power to designate the beneficiary of a beneficiary designation.
(6)
“Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate or creditors of his or her estate and a power to revoke or invade the principal of a trust or other property arrangement, whether or not the decedent had the capacity to exercise the power at the time.
(7)
“Property" has the meaning given in s. 851.27 and includes values subject to a beneficiary designation.
(8)
“Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust or a similar arrangement.
(9)
“Transfer" includes, but is not limited to, the following:
(a)
An exercise or release of a presently exercisable general power of appointment held by the decedent.
(b)
A lapse at death of a presently exercisable general power of appointment held by the decedent.
(c)
An exercise, release or lapse of either of the following:
1.
A general power of appointment that the decedent created in himself or herself.
2.
A power under s. 861.03 (3) that the decedent conferred on a nonadverse party.
History:  1997 a. 188.
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.04 - Augmented deferred marital property estate: surviving spouse's property and transfers to others.

861.04
Augmented deferred marital property estate: surviving spouse's property and transfers to others.
(1)
Subject to s. 861.05, the augmented deferred marital property estate includes the value of any deferred marital property that would have been included under s. 861.03 had the surviving spouse been the decedent.
(2m)
When the surviving spouse is treated as the decedent under sub. (1), the decedent is not treated as the surviving spouse for the purposes of s. 861.05 (1) (e) or (2m).
History:  1997 a. 188; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.07 - Personal liability of recipients.

861.07
Personal liability of recipients.
(1)
Definition. In this section, “proceeds" includes:
(a)
The consideration, in money or property, received in exchange for the property that is the subject of the transfer.
(b)
Property acquired with the consideration received in exchange for the property that is the subject of the transfer.
(2)
Persons liable. The following persons are liable to make a prorated contribution toward satisfaction of the surviving spouse's deferred marital property elective share amount:
(a)
Original recipients of the decedent's transfers of deferred marital property to others, irrespective of whether the recipient has the property or its proceeds.
(b)
Donees of the recipients under par. (a) if the donees have the property or its proceeds. If a donee has neither the property nor its proceeds but knew or should have known of the liability under this section, the donee remains liable for his or her share of the prorated contribution.
(3)
Mode of satisfaction.
(a)
Subject to par. (b), a person who is liable under sub. (2) may either give up the proportional part of the decedent's transfers to him or her or pay the value of the amount for which he or she is liable.
(b)
On petition of the surviving spouse showing that the mode of satisfaction chosen in par. (a) will create a hardship for the surviving spouse, the court may order that a different mode of satisfaction be used.
(4)
Effect of federal preemption. If any provision of this subchapter is preempted by federal law with respect to any property interest or benefit that is included under s. 861.03 and that would pass but for that preemption to a person other than the surviving spouse, the recipient, unless he or she is a recipient for value, is subject to subs. (1) to (3).
History:  1997 a. 188; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.08 - Proceeding for election; time limit.

861.08
Proceeding for election; time limit.
(1)
Generally. Except as the time may be extended under sub. (3), in order to make the election, the surviving spouse shall, within 6 months after the date of the decedent's death, do all of the following:
(a)
File a petition for the election with whichever of the following applies:
1.
The court that has jurisdiction of the probate proceedings relating to the decedent's estate if a judicial proceeding has been commenced.
2.
The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence if no judicial proceeding has commenced.
(b)
Mail or deliver a copy of the petition to the personal representative, if any, of the decedent's estate.
(2)
Notification of interested parties. The surviving spouse shall give notice, in the manner provided in ch. 879, of the time and place set for hearing the petition to any persons who may be adversely affected by the election.
(3)
Extension of time for election.
(a)
Subject to par. (b), the court may grant the surviving spouse an extension for making an election if the surviving spouse petitions the court for an extension, gives notice as specified in sub. (2) and shows cause for an extension.
(b)
The petition for extension of the time for making an election must be filed within 6 months after the decedent's death, unless the court finds all of the following:
1.
That the surviving spouse was prevented from filing the action or naming a particular interested party for reasons beyond his or her control.
2.
That failure to extend the time for making an election will result in hardship for the surviving spouse.
(4)
Withdrawal of election. The surviving spouse may withdraw the petition for an election at any time before the probate court has entered the final determination of the distribution of the decedent's estate.
(5)
Court determination of liability.
(a)
After notice and hearing, the court shall determine the deferred marital property elective share amount and shall determine the property that satisfies that amount under ss. 861.06 and 861.07.
(b)
If the personal representative does not hold the money or property included in the augmented deferred marital property estate, the court shall determine the liability of any person or entity that has any interest in the money or property or that holds that money or property.
(c)
The surviving spouse may choose to seek relief from fewer than all recipients. However, any such action shall not cause any other recipient's liability to exceed the amount that he or she would have had to pay if all recipients had paid a prorated share.
(6)
Suits authorized. An order or judgment of the court may be enforced in a suit for contribution or payment in other courts of this state or other jurisdictions.
History:  1997 a. 188.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.09 - Right of election by or on behalf of surviving spouse.

861.09
Right of election by or on behalf of surviving spouse.
The surviving spouse must be living in order for an election to be filed. If the surviving spouse does not personally file the election, it may be filed on the surviving spouse's behalf by the spouse's conservator, guardian or guardian ad litem, or by an agent of the spouse acting under a power of attorney.
History:  1997 a. 188.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.10 - Waiver of right to elect; failure to elect.

861.10
Waiver of right to elect; failure to elect.
(1)
Right to elect may be waived. The right to elect a deferred marital property elective share amount may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver must be contained in a marital property agreement that is enforceable under s. 766.58 or in a signed document filed with a court described in s. 861.08 (1) (a) after the decedent's death.
(2)
Waiver of “all rights". Unless the waiver provides otherwise, a waiver of “all rights," or equivalent language, in the property or estate of a present or prospective spouse, or in a complete property settlement entered into because of separation or divorce, is a waiver of all rights in the deferred marital property elective share amount.
(3)
Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse's probate estate or to the beneficiaries of other transfers.
History:  1997 a. 188; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.17 - Rights in property transferred in fraud of surviving spouse.

861.17
Rights in property transferred in fraud of surviving spouse.
(1)
Nothing in this chapter precludes a court in an equitable proceeding from subjecting to the rights of the surviving spouse under ch. 852 and this chapter any property arrangement made by the decedent in fraud of those rights. A property arrangement in fraud of the rights of the surviving spouse means any of the following:
(a)
Any transfer or acquisition of property, regardless of the form or type of property rights involved, made by the decedent during marriage or in anticipation of marriage for the primary purpose of defeating the rights of the surviving spouse under ch. 852 and this chapter.
(b)
Any breach of the good faith duty imposed by s. 766.15 made for the primary purpose of defeating the rights of the surviving spouse in or to marital property.
(2)
An arrangement made before marriage, or within one year after marriage, or prior to April 1, 1971, to provide for issue by a prior marriage is not a fraudulent property arrangement within the meaning of this section.
(3)
If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. A spouse who recovers under this subsection forfeits any power of appointment that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power.
(3m)
If the spouse is successful in an action to reach fraudulent property arrangements involving marital property, recovery is limited to the surviving spouse's interest in the marital property. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged marital property, except a special power.
(4)
The surviving spouse has no rights against any person dealing with the property without actual knowledge, or receipt of written notice, of the claim of the spouse. A person who has knowledge of facts and circumstances sufficient to put the person on inquiry as to a claim by the spouse does not have actual knowledge and is not required to make further inquiry. This subsection does not protect a gratuitous donee from the original beneficiary of the fraudulent arrangement.
(5)
Every such suit must be brought within 3 years of decedent's death, but may be barred by laches at an earlier date.
History:  1983 a. 186; 1985 a. 37 s. 187; 1993 a. 486; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.20 - Surviving spouse's right in nondomiciliary decedent's real property in this state.

861.20
Surviving spouse's right in nondomiciliary decedent's real property in this state.
(1)
If a married person who does not have a domicile in this state dies and leaves a valid will disposing of real property in this state which is not the community property or marital property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in that property against the will of the decedent as if the property were located in the decedent's domicile at the decedent's death. The procedure of the decedent's domicile for electing against the will applies to such an election.
(2)
If a married person who does not have a domicile in this state dies and has an interest in real property in this state that is subject to administration but not disposed of by will, the surviving spouse has the same right to the property under intestate succession as if the property were located in the decedent's domicile at decedent's death.
History:  1985 a. 37; 1987 a. 393; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.21 - Assignment of home to surviving spouse or surviving domestic partner.

861.21
Assignment of home to surviving spouse or surviving domestic partner.
(1)
Definitions. In this section:
(a)
“Governing instrument" has the meaning given in s. 854.01 (2).
(b)
“Home" means any dwelling in which the decedent had an interest and that at the time of the decedent's death the surviving spouse or surviving domestic partner occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse or surviving domestic partner. “Home" includes a house, a mobile home, a manufactured home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse or surviving domestic partner and a building used in part for a dwelling and in part for commercial or business purposes. “Home" includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5).
(2)
Decedent's property interest in home. Subject to subs. (4) and (5), if a married decedent or decedent in a domestic partnership has a property interest in a home, the decedent's entire interest in the home shall be assigned to the surviving spouse or surviving domestic partner if the surviving spouse or surviving domestic partner petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent's interest in the home to someone other than the surviving spouse or surviving domestic partner. The surviving spouse or surviving domestic partner shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.
(4)
Payment by surviving spouse or surviving domestic partner. The court shall assign the interest in the home under sub. (2) to the surviving spouse or surviving domestic partner upon payment of the value of the decedent's interest in the home that does not pass to the surviving spouse or surviving domestic partner under intestacy or under a governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse or surviving domestic partner may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse or surviving domestic partner shall have one year from the decedent's death to pay the value of the assigned interest.
(5)
Severance of home from surrounding land. On petition of the surviving spouse or surviving domestic partner or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home under sub. (2), the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land.
History:  1997 a. 188; 2005 a. 216; 2007 a. 11; 2009 a. 28.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.31 - Allowance to family during administration.

861.31
Allowance to family during administration.
(1m)
The court may, without notice or on such notice as the court directs, order payment by the personal representative or special administrator of an allowance as the court determines necessary or appropriate for the support of the surviving spouse or surviving domestic partner and any minor children of the decedent during the administration of the estate. The court shall consider the size of the probate estate, other resources available for support, the existing standard of living, and any other factors it considers relevant.
(2)
The court may order that an allowance be made to the spouse or surviving domestic partner for support of the spouse or surviving domestic partner and any minor children of the decedent, or that separate allowances be made to the spouse or surviving domestic partner and to the minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse or surviving domestic partner, the court may order that an allowance be made to the minor children of the decedent or to their guardian, if any.
(3)
The initial order for support may not exceed one year but may be extended for additional periods of not to exceed one year at a time, and is subject to revision or termination at any time by further order of the court.
(4)
The court may order that the allowance be charged against income or principal, either as an advance or otherwise, but the court may not order that an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse or surviving domestic partner. The court may order that the allowance for support of the surviving spouse or surviving domestic partner, not including any allowance for support of minor children of the decedent, be applied in satisfaction of any of the following:
(a)
Any entitlement of the surviving spouse under s. 853.12.
(b)
Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02.
History:  1971 c. 40; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.
NOTE:  1991 Wis. Act 301 contains legislative council notes.
Widow's allowances and the IRC. Miller, 54 MLR 193.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.33 - Selection of personalty by surviving spouse or surviving domestic partner.

861.33
Selection of personalty by surviving spouse or surviving domestic partner.
(1)
(a)
Subject to this section, in addition to all allowances and distributions, the surviving spouse or surviving domestic partner may file with the court a written selection of the following personal property, which shall then be transferred to the spouse or domestic partner by the personal representative:
1.
Wearing apparel and jewelry held for personal use by the decedent or the surviving spouse or surviving domestic partner;
2.
Automobile;
3.
Household furniture, furnishings and appliances; and
4.
Other tangible personalty not used in trade, agriculture or other business, not to exceed $3,000 in inventory value.
(b)
The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or surviving domestic partner may in every case select the normal household furniture, furnishings, and appliances necessary to maintain the home. For this purpose antiques, family heirlooms, and collections that are specifically bequeathed are not classifiable as normal household furniture or furnishings.
(2)
If it appears that claims may not be paid in full, the court may, upon petition of any creditor, limit the transfer of personalty to the spouse under this section to items not exceeding $5,000 in aggregate inventory value until the claims are paid in full or the court otherwise orders, or the court may require the spouse to retransfer property in excess of $5,000 or, at the option of the spouse, pay the excess in value over this amount.
(3)
The surviving spouse may select items not specifically bequeathed of the type specified under sub. (1) (a) 4. exceeding in value the $3,000 limit or obtain the transfer of items exceeding the limit set by the court under sub. (2), by paying to the personal representative the excess of inventory value over the respective limit.
(4)
The personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property the spouse selects under this section. A person may not question the validity of the documents of transfer or refuse to accomplish the transfer on the grounds that the personal representative is also the surviving spouse of the decedent.
History:  1973 c. 233; 1983 a. 192; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.
This section is constitutional. In Matter of Estate of Eisenberg, 90 Wis. 2d 620, 280 N.W.2d 359 (Ct. App. 1979).
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.41 - Exemption of property to be assigned to surviving spouse or surviving domestic partner.

861.41
Exemption of property to be assigned to surviving spouse or surviving domestic partner.
(1)
After the amount of claims against the estate has been ascertained, the surviving spouse or surviving domestic partner may petition the court to set aside as exempt from the claims of creditors under s. 859.25 (1) (h) an amount of property reasonably necessary for the support of the spouse or domestic partner, not to exceed $10,000 in value, if it appears that the assets are insufficient to pay all claims and allowances and still leave the surviving spouse or surviving domestic partner such an amount of property in addition to selection and allowances.
(2)
The court shall grant the petition if it determines that an assignment ahead of creditors is reasonably necessary for the support of the spouse or domestic partner. In determining the necessity and the amount of property to be assigned, the court must take into consideration the availability of a home to the surviving spouse or surviving domestic partner and all other assets and resources available for support.
History:  1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1997 a. 188; 2009 a. 28.
2023 Wisconsin Statutes & Annotations › Chapter 861 - Probate — family rights. › 861.43 - Authority and powers of conservator, guardian or agent.

861.43
Authority and powers of conservator, guardian or agent.
A conservator, guardian or guardian ad litem of the spouse or of a child of the decedent, or an agent of the spouse or of a child of the decedent acting under a power of attorney, may on behalf of the spouse or child exercise any of the rights, apply for any of the allowances or make any of the selections that apply to the spouse or child under this subchapter.
History:  1997 a. 188.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.01 - When personal representative shall account.

862.01
When personal representative shall account.
Except where final settlement is by sworn statement under s. 865.16, every personal representative shall file in the court a verified account of the personal representative's administration:
(1)
When the personal representative files a petition for final settlement;
(2)
Upon the revocation of the personal representative's letters;
(3)
When the personal representative submits an application to resign as personal representative;
(4)
At any other time when directed by the court either on its own motion or on the application of any person interested.
History:  1973 c. 39; 1993 a. 486.
Cross-reference:  See s. 863.33 for requirement that estates be completed promptly.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.03 - Account of personal representative adjudicated incompetent, deceased, or removed.

862.03
Account of personal representative adjudicated incompetent, deceased, or removed.
(1)
Personal representative adjudicated incompetent. If a personal representative is adjudicated incompetent, the account under s. 862.01 shall be filed by the personal representative's guardian, or, if the personal representative's guardian fails to file, then by the personal representative's bondsman. If neither the guardian nor the bondsman files an account, the court shall appoint a special administrator to file the account of the personal representative who is adjudicated incompetent.
(2)
Deceased personal representative. If a personal representative dies, the account under s. 862.01 shall be filed by the personal representative of the deceased personal representative's estate, or if the deceased personal representative's personal representative fails to file then by a special administrator of the deceased personal representative's estate or by the deceased personal representative's bondsman.
(3)
Removed personal representative. If a personal representative is removed and fails to file the account under s. 862.01, the removed personal representative's account shall be filed by the removed personal representative's bondsman. If the bondsman fails to file, the court shall appoint a special administrator to file the account of the personal representative who has been removed.
(4)
Payment for preparation. The person who prepares and files an account in accordance with this section shall be allowed the reasonable value of the person's services to be paid out of the estate, and the fees of the personal representative who is adjudicated incompetent, deceased, or removed shall be reduced accordingly.
History:  1973 c. 90; 1993 a. 486; 2005 a. 387.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.05 - What charged to personal representative.

862.05
What charged to personal representative.
Every personal representative shall be charged in the personal representative's accounts with all the property of the decedent which comes to the personal representative's possession; with all profit and income which comes to the personal representative's possession from the estate and with the proceeds of all property of the estate sold by the personal representative.
History:  1993 a. 486.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.07 - Value at which to account; what accounts to contain.

862.07
Value at which to account; what accounts to contain.
The personal representative shall account for the property of the decedent at the value at which it is shown in the inventory. Accounts rendered to the court by a personal representative shall be for a period distinctly stated and shall show by debit and credit each item with which the personal representative is chargeable. The account shall first show the total value of the property with which the personal representative is chargeable according to the inventory or, if there has been a prior accounting, the amount of the balance of the prior account; it shall show all income or other property received and gains or losses from the sale of any property; and it shall show all payments, charges and losses. The final account shall itemize all property available for distribution and all property previously distributed and show its inventory value or if acquired by the personal representative during administration, its acquisition value.
History:  1993 a. 486.
Cross-reference:  See s. 71.13 (2) which requires the personal representative to file with the assessor of incomes such withholding tax returns (reports) for wages paid, sales tax returns and income tax returns as are due from the decedent and his estate.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.09 - Hearing on settlement of account; notice.

862.09
Hearing on settlement of account; notice.
Upon the filing of any account, the court shall set a date for hearing and notice thereof shall be given in accordance with s. 879.03. Unless notice is waived, the account must be filed not less than 3 weeks before the date set for hearing. An account so filed may be brought up to date on the day of the hearing. If any account shows that the assets in the estate are insufficient to pay the creditors in full, notice of that fact and of the filing of the account shall be given to all creditors who have filed claims against the estate and whose claims have not been disallowed.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.11 - Copy of account to be given to persons interested.

862.11
Copy of account to be given to persons interested.
At the time that the personal representative gives notice of hearing of allowance of any account or secures waivers of notice of hearing, the personal representative shall mail or deliver a copy of the account to every person interested whose distribution from the estate is affected by the information, other than death tax information, contained in the account. If any person interested is represented by a guardian or guardian ad litem, a copy of the account shall be mailed or delivered to the guardian or guardian ad litem but not to the person interested. If the person interested is in the military service and is represented by an attorney or an attorney-in-fact, a copy of the account shall be mailed to both the attorney or the attorney-in-fact and the person interested. Failure of the personal representative to comply with this section does not affect the jurisdiction of the court as to persons interested.
History:  1987 a. 27 s. 3200 (47); 1991 a. 220, 315.
Cross-reference:  See s. 879.26 which provides for waiver of this requirement.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.15 - Settlement of account.

862.15
Settlement of account.
The court must be satisfied of the correctness and legality of the account before allowing it. If the personal representative is present at the hearing, the personal representative may be examined on oath upon any matter relating to the personal representative's account and the settlement of the estate. The court may refuse to approve the account unless the personal representative is present at the hearing.
History:  1993 a. 486.
2023 Wisconsin Statutes & Annotations › Chapter 862 - Probate — accounts. › 862.17 - Accounts; failure of personal representative to file.

862.17
Accounts; failure of personal representative to file.
If any personal representative fails to file the personal representative's account as required by law or ordered by the court, the court may, upon its own motion or upon the petition of any person interested, either order the personal representative to file the account by a day certain or the court may proceed under s. 857.09. If after having been ordered to file the account by a day certain, the personal representative fails to comply with the order, the court shall proceed under s. 857.09.
History:  1993 a. 486.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.01 - Distribution of specific property to distributee and partial distribution before final judgment.

863.01
Distribution of specific property to distributee and partial distribution before final judgment.
Before final judgment has been rendered the personal representative may deliver to any distributee possession of any specific property to which the distributee is entitled under the terms of the will or any statute. The personal representative may make one or more partial distributions of the estate, provided that other distributees and claimants are not prejudiced thereby. The personal representative may require the distributees to give security for the return of such property.
History:  1993 a. 486.
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.05 - Execution and levies by creditors of distributees prohibited.

863.05
Execution and levies by creditors of distributees prohibited.
Except as provided in s. 863.46, no garnishment, attachment or execution may issue against nor may any levy be made against any property of the estate under any judgment or cause of action against any distributee of the estate.
History:  1985 a. 29.
Cross-reference:  Ch. 816 and s. 813.026 provide remedies for creditors through the appointment of a receiver.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.07 - Assignment by distributee.

863.07
Assignment by distributee.
If any person interested in an estate assigns all or part of his or her interest in the estate, other than an interest not assignable by the specific language of the will, as collateral or otherwise and the assignee serves a copy of the assignment on the personal representative of the estate and files a copy with the court in which the estate is being administered before the entry of the final judgment and before the property or interest covered by the assignment has been distributed under s. 863.01, the court shall assign to the assignee in the final judgment the interest or part of the interest of the assignor included within the assignment to the extent that the assignment is valid as determined by the court, after giving effect to any credits to which the assignor may prove himself or herself entitled. A personal representative incurs no liability to an assignee of a person interested for any acts performed or distribution made by the personal representative prior to the time a copy of the assignment is received by the personal representative or he or she has actual knowledge of the assignment.
History:  1977 c. 449; 1999 a. 85.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.08 - Exchange by distributee and surviving spouse.

863.08
Exchange by distributee and surviving spouse.
In its final judgment or other order, the court shall assign items to the surviving spouse and distributee to conform with the exchange under s. 766.31 (3) (b) to the extent that the court approved the exchange.
History:  1987 a. 393; 2005 a. 216.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.09 - Allowance for tombstone and care of grave.

863.09
Allowance for tombstone and care of grave.
(1)
Tombstone. In case no provision is made in the will for a tombstone or monument or marker at the grave of the decedent, and none has been erected, the personal representative may expend a reasonable sum for that purpose. The expenditure is subject to the approval of the court and is classed as funeral expense.
(2)
Care of grave. The court may order the personal representative to pay a suitable amount for the care of the grave of the decedent. The expenditure is classed as funeral expense.
History:  1989 a. 309.
Cross-reference:  For court orders concerning perpetual care of graves, see ss. 157.11 and 157.125.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.11 - Order in which assets appropriated; abatement.

863.11
Order in which assets appropriated; abatement.
Shares of distributees abate in accordance with the rules under s. 854.18.
History:  1983 a. 186; 1995 a. 225; 1997 a. 188.
A general direction to pay debts requires that the federal estate tax be deducted from the gross estate before computing the marital deduction as opposed to a contention that the full deduction be allowed since the tax should be paid from assets going to other heirs. Greene v. United States, 476 F.2d 116 (1973).
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.13 - No exoneration of encumbered property.

863.13
No exoneration of encumbered property.
Specifically devised property that is subject to a mortgage or other encumbrance is subject to the rules under s. 854.05.
History:  1993 a. 486; 1997 a. 188.
Cross-reference:  See s. 859.43 which deals with payment of debts which are secured by an encumbrance on property in the estate.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.16 - Value used in distribution of fractional shares.

863.16
Value used in distribution of fractional shares.
In distributing property to distributees who receive fractional shares of the estate under the statutes of descent and distribution or under provisions in a will, the personal representative shall divide the property among the distributees on the basis of the value of the property at the time of distribution unless the will provides otherwise.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.17 - Partition by agreement.

863.17
Partition by agreement.
Property passing to persons as joint tenants or tenants in common may be partitioned among those persons by the judgment of the court assigning the property, if a petition therefor signed by all persons interested in the property involved is filed with the court prior to the judgment. The petition must set out the manner in which the property is to be divided and the agreement of all persons interested in the property involved.
History:  1977 c. 449.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.19 - Valuation used in distribution of estate assets.

863.19
Valuation used in distribution of estate assets.
If a general bequest of estate assets, including a pecuniary bequest, in a dollar amount fixed by formula or otherwise is satisfied by a distribution in kind, the distribution shall be made at current fair market values unless the will expressly provides that another value may be used. If the will requires or permits a different value to be used, all assets available for distribution, including cash, shall unless otherwise expressly provided be so distributed that the assets, including cash, distributed in satisfaction of the bequest will be fairly representative of the net appreciation or depreciation in the value of the available property on the dates of distribution. A provision in a will that the personal representative may fix values for the purpose of distribution does not of itself constitute authorization to fix a value other than current fair market value.
The valuation of assets for distribution is the current market value at the time of distribution. Estate of Naulin, 56 Wis. 2d 100, 201 N.W.2d 599 (1972).
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.21 - Construction of will, notice.

863.21
Construction of will, notice.
Notice of hearing upon a petition for the construction of a will shall be given under s. 879.05. If a petition for final judgment contains a request for construction of a will, the notice of hearing on such petition shall include, or be accompanied by, specific notice of the request for construction, the reasons therefor and a copy of the petition or the part thereof requesting construction.
History:  1975 c. 331.
When the proposed final decree uses language different from that appearing in the will or construes the will in the sense of ascertaining the meaning of the testator rather than following express, clear instructions, a record of the reasons for the construction should be made, a special notice of the proposed construction of the will should be given to the parties interested, and a copy of the petition for construction should accompany the notice. Estate of MacLean, 47 Wis. 2d 396, 177 N.W.2d 874 (1970).
When a will mistakenly assumed that the homestead was in joint tenancy when it was solely owned by the testator, the homestead did not pass by intestacy, but fell into the residue. Estate of Sneeberger, 54 Wis. 2d 657, 196 N.W.2d 662 (1972).
Courts may not apply the doctrine of probable intent, which would allow a court to receive extrinsic evidence, irrespective of the presence or absence of an ambiguity, to ascertain the likely intention of the testator. Estate of Connolly, 65 Wis. 2d 440, 222 N.W.2d 885 (1974).
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.23 - Determination and proof of heirship.

863.23
Determination and proof of heirship.
In every administration of an estate in which notice to creditors is required, except in proceedings under ch. 865, the persons who are the heirs of the decedent shall be determined by the court after hearing. Proof and determination of heirship may be had under this section in an estate administered informally under ch. 865 if desired by the personal representative or interested persons. Notice of the hearing is required except in summary assignment under s. 867.02. Notice shall be given under s. 879.03 but shall include notice by publication under s. 879.05 (4). Determination of heirship shall not be made until after the testimony or deposition of one or more witnesses is reduced to writing and filed. A petition for determination of heirship may be included in the petition for administration, petition for approval of final account and final judgment or in a separate petition; and the notice may be included in the notice of hearing on any of the petitions, or in the notice to creditors.
History:  1971 c. 40; 1973 c. 39; 1975 c. 331.
Cross-reference:  See s. 856.15 which provides for proof of heirship outside the county.
NOTE:  Under s. 867.02 no notice to heirs is required if the estate is under $50,000. Notice to creditors is still required under s. 867.02 (2) (d).
Construing the authority of a personal representative under s. 767.45 (1) (e) [now s. 767.80 (1) (e)] to bring a motion to determine paternity in a way that allows preventing the definitive determination of heirs would undermine the principle that property of intestate decedents should descend to kindred of the blood and defeat a court's responsibility under this section that persons who are the heirs of the decedent shall be determined by the court. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.25 - Petition for final judgment.

863.25
Petition for final judgment.
Except where final settlement is by sworn statement under s. 865.16, after the payment of the allowances, debts, taxes, funeral expenses and expenses of administration and when, if necessary, a fund has been withheld from distribution for the payment of contingent claims, for meeting possible tax liability or for any other reasonable purpose, the personal representative shall, if the estate is in a condition to be closed, file the final account and at the same time petition the court for hearing on the final account and for final judgment assigning the estate to the persons entitled to the same. Notice of hearing shall be given under s. 879.03. If the petition requests the construction of a will, the notice shall comply with the requirements under s. 863.21.
History:  1973 c. 39; 1975 c. 331, 421.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.27 - Contents of final judgment.

863.27
Contents of final judgment.
In the final judgment the court shall approve the final account, designate the persons to whom assignment and distribution are being made, and assign to each of them the property or proportions or parts of the estate or the amounts to which each is entitled. The findings of fact which support the judgment shall include a determination of the heirs of the decedent; facts showing that all jurisdictional requirements have been met; the date of death of the decedent and the decedent's testacy or intestacy; facts relating to the payment of state death tax, state income tax, and claims and charges against the estate. If immediately before death the decedent had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination has not been issued under s. 867.04 or an interest in marital property for which a certificate has not been issued under s. 865.201 or 867.046, the findings of fact which support the judgment shall set forth the termination of the life estate, the right of survivorship of any joint tenant, or the decedent's interest in marital property and, upon the petition of the decedent's spouse, the confirmation of the one-half interest held by the surviving spouse in marital property immediately before the death of the decedent spouse. In addition, the findings of fact shall, upon petition of a designated person, trust, or other entity under s. 766.58 (3) (f) or of a TOD beneficiary under s. 705.15 or 705.18, set forth the confirmation of an interest in property passing by nontestamentary disposition under s. 705.15, 705.18, or 766.58 (3) (f). Every tract of real property in which an interest is assigned or terminated shall be specifically described. If a fund is withheld from distribution for the payment of contingent claims, for meeting possible tax liability, or for any other reasonable purpose, the judgment shall provide for the distribution of the fund if all or a part of it is not needed.
History:  1971 c. 40 s. 93; 1977 c. 449; 1985 a. 37; 1987 a. 27; 2005 a. 206; 2021 a. 201.
NOTE:  See notes in 1985 Wis. Act 37, marital property trailer bill.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.29 - Recording final judgment.

863.29
Recording final judgment.
(1)
Recording required. Whenever the final judgment assigns an interest in real property, assigns a debt which is secured by an interest in real property or shows the termination of a life estate or an interest as a joint tenant in real property or in a debt which is secured by an interest in real property, the final judgment, a certified copy of the final judgment or a certified abridgment thereof as described in sub. (2) shall be recorded by the personal representative in the office of the register of deeds in each county in this state in which the real property is located.
(2)
Abridged final judgment. In lieu of a certified copy of the final judgment assigning the estate, the personal representative may record an abridgment of the final judgment including the portions that relate to and affect title to real property in the county in which the abridgment is recorded. The accuracy of the abridgment shall be certified by the judge or the register in probate of the court which assigned the estate.
2023 Wisconsin Statutes & Annotations › Chapter 863 - Closing estates. › 863.31 - Conclusiveness of final judgment.

863.31
Conclusiveness of final judgment.
(1)
Generally. The final judgment is a conclusive determination of the persons who are the successors in interest to the estate of the decedent and of the extent and character of their interests therein, subject only to the right of appeal and the right to reopen the judgment. It operates as an assignment or final adjudication of the transfer of the right, title and interest of the decedent to the distributees therein designated.
(2)
As to purchasers for value from distributees. After the final judgment has been recorded in the office of the register of deeds in the county in which the real estate is located, purchasers for value of real estate which is described in the final judgment from distributees or their successors in title may rely on the final judgment as conclusive insofar as it purports to transfer to the distributees any title which the decedent held in the real estate at the time of the decedent's death, except to the extent that there has been a transfer of an interest in the real estate by the personal representative under ch. 860 or s. 863.01 of which the purchaser has actual notice or of which the purchaser has constructive notice because of recording in the office of the register of deeds in the county in which the real estate is located.
History:  1993 a. 486.