Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Wisconsin Summary:
Caution:The Wisconsin statute
on small estates is lengthy and complex. Extra care should be taken
to read and understand the many statutory provisions below.
As a general proposition, pursuant to §867.03,
when an estate is valued at less than $20,000, an interested party may
issue an affidavit, described in §867.03(1g)(b), to any party who
owes a debt to the decedent for purposes of collecting said debt.
Wisconsin Requirements:
Wisconsin requirements are set forth in the statutes below.
867.01 Summary settlement of small estates.
867.01(1)
(1) Availability. The court shall summarily settle the estate
of a deceased person without the appointment of a personal representative:
867.01(1)(a)
(a) Whenever the estate, less the amount of the debts for
which any property in the estate is security, does not exceed in value
the costs, expenses, allowances and claims under s. 859.25 (1) (a) to (g).
867.01(1)(b)
(b) Whenever the estate, less the amount of the debts for
which any property in the estate is security, does not exceed $50,000 in
value and the decedent is survived by a spouse or one or more minor children
or both.
867.01(2)
(2) When commenced under other procedure. An estate, administration
of which has been commenced under ch. 856, may be terminated under this
section at any time that it is found to meet the requirements of this section.
867.01(3)
(3) Procedure.
867.01(3)(ac)
(ac) Who may petition. A person who has standing to
petition for administration of the estate under s. 856.07 has standing
to petition for summary settlement.
867.01(3)(am)
(am) Petition contents. The petition shall contain
the following information:
867.01(3)(am)1.
1. The facts required by sub. (1).
867.01(3)(am)2.
2. A detailed statement of property in which the decedent
had an interest, property over which the decedent had a power of appointment,
benefits payable on the decedent's death under annuities or under a retirement
plan, life insurance, joint and life tenancies, gifts made in contemplation
of death or taking effect upon death or made within 2 years prior to death
and any other property that may be subject to death taxes as a result of
the decedent's death.
867.01(3)(am)3.
3. The names and post-office addresses of all persons interested,
so far as known to the petitioner or ascertainable by the petitioner with
reasonable diligence. The petition shall indicate those who are minors
or otherwise under disability and the names and post-office addresses of
their guardians.
867.01(3)(am)4.
4. Whether the decedent or the decedent's spouse received
the family care benefit under s. 46.286, medical assistance under subch.
IV of ch. 49, long-term community support services funded under s. 46.27
(7) or aid under s. 49.68, 49.683 or 49.685.
867.01(3)(b)
(b) Special administrator may be appointed. If the
court deems it necessary, it may at any time during the proceeding appoint
a special administrator to aid in the settlement.
867.01(3)(c)
(c) Bond. Before making any order, the court may require
a bond of the petitioner in an amount the court deems sufficient, conditioned
to indemnify any person who may be aggrieved thereby.
867.01(3)(d)
(d) Notice. The court may hear the matter without notice
or order notice to be given under s. 879.03. If the decedent or the
decedent's spouse received the family care benefit under s. 46.286, medical
assistance under subch. IV of ch. 49, long-term community support services
funded under s. 46.27 (7) or aid under s. 49.68, 49.683 or 49.685, the
petitioner shall give notice by certified mail to the department of health
and family services as soon as practicable after filing the petition with
the court.
867.01(3)(f)
(f) Order. If the court is satisfied that the estate
may be settled under this section, after 30 days have elapsed since notice
to the department of health and family services under par. (d), if that
notice is required, the court shall assign the property to the persons
entitled to it. If the estate may be settled under sub. (1) (b),
any property not otherwise assigned shall be assigned to the surviving
spouse or minor children or both as an allowance under s. 861.31.
The court shall order any person indebted to or holding money or other
property of the decedent to pay the indebtedness or deliver the property
to the persons found to be entitled to receive it. The court shall
order the transfer of interests in real estate, stocks or bonds registered
in the name of the decedent, the title of a licensed motor vehicle, or
any other form of property. If the decedent immediately prior to
death had an estate for life or an interest as a joint tenant in any property
in regard to which a certificate of termination in accordance with s. 867.04
has not been issued, the order shall set forth the termination of that
life estate or the right of survivorship of any joint tenant. Every
tract of real property in which an interest is assigned or terminated or
which is security for a debt in which an interest is assigned or terminated
shall be specifically described.
867.01(3)(g)
(g) Information to unsatisfied creditors. The court
may order the petitioner to inform known unsatisfied creditors as to the
final disposition of the estate.
867.01(3)(h)
(h) Recording required. Whenever the order relates
to an interest in real property or to a debt which is secured by an interest
in real property, a certified copy or duplicate original of such order
shall be recorded by the petitioner in the office of the register of deeds
in each county in this state in which such real property is located.
867.01(4)
(4) Release of liability of transferor. Upon the payment,
delivery, transfer or issuance in accordance with the order of the court,
the persons making such delivery, transfer or issuance are released to
the same extent as if the same had been made to a personal representative
of the estate of the decedent.
867.01(5)
(5) Proceeding with or without attorney. Any party to a proceeding
under this section may commence or appear at such proceeding in his or
her own behalf, by an attorney or, if in the military service, by an attorney-in-fact,
but not otherwise.
867.01 - ANNOT. History: 1971 c. 40 s. 93; 1973 c. 42, 90; 1975 c. 331, 421; 1977 c. 449; 1985 a. 278; 1987 a. 27; 1989 a. 234; 1991 a. 220; 1993 a. 16, 437, 486; 1995 a. 27 ss. 7193b to 7194c, 9126 (19); 1999 a. 9, 94.
867.01 - ANNOT.
Cross-references: See ch. 705 concerning multiple-party and agency
accounts.
867.01 - ANNOT.
See s. 856.01 for jurisdiction for administration of estates.
867.01 - ANNOT.
See s. 880.28 which provides for summary closing by guardian of
small estate of ward.
867.01 - ANNOT.
See s. 895.41 (3) for payment of decedent's employee's cash bond
by employer directly to decedent's dependents.
867.02
867.02 Summary assignment of small estates subject to claims
of creditors.
867.02(1)
(1) Availability. The court shall summarily assign the estate
of a deceased person without the appointment of a personal representative
if the estate, less the amount of the debts for which any property in the
estate is security, does not exceed $50,000 in value and the estate cannot
be summarily settled under s. 867.01. An estate, administration of
which has been commenced under ch. 856, or a summary settlement commenced
under s. 867.01 may be terminated under this section at any time that it
is found to meet the requirements of this section.
867.02(2)
(2) Procedure.
867.02(2)(ac)
(ac) Who may petition. Any person who has standing
to petition for administration of the estate under s. 856.07 has standing
to petition for summary assignment.
867.02(2)(am)
(am) Petition contents. The petition shall contain
the following information, except that the petitioner may omit from the
petition the information in subds. 3. and 4. and include it in an affidavit
filed with the court prior to the signing of the order assigning the estate:
867.02(2)(am)1.
1. A statement that the estate does not exceed $50,000 in
value and cannot be summarily settled under s. 867.01.
867.02(2)(am)2.
2. A statement as to whether, after the exercise of reasonable
diligence, the petitioner has been able to locate the will of the decedent.
867.02(2)(am)3.
3. A detailed statement of property in which the decedent
had an interest, property over which the decedent had a power of appointment,
benefits payable on decedent's death under annuities or under a retirement
plan, life insurance, joint and life tenancies, gifts made in contemplation
of death or taking effect upon death or made within 2 years prior to death
and any other property which may be subject to death tax as a result of
decedent's death.
867.02(2)(am)4.
4. The names and post-office addresses of all creditors of
the decedent or the decedent's estate of whom the petitioner has knowledge
and the amount claimed by each.
867.02(2)(am)5.
5. The names and post-office addresses of all persons interested,
so far as known to petitioner or ascertainable by the petitioner with reasonable
diligence. The petition shall indicate those who are minors or otherwise
under disability and the names and post-office addresses of their guardians.
867.02(2)(am)6.
6. Whether the decedent or the decedent's spouse received
the family care benefit under s. 46.286, medical assistance under subch.
IV of ch. 49, long-term community support services funded under s. 46.27
(7) or aid under s. 49.68, 49.683 or 49.685.
867.02(2)(b)
(b) Will. The will of the decedent shall be filed with
the petition.
867.02(2)(c)
(c) Bond. Before making any order, the court may require
a bond of the petitioner in an amount the court deems sufficient, conditioned
to indemnify any person who may be aggrieved by the order. Before
assigning property, the court may require assignees to give bond for the
satisfaction of their liability to creditors or persons interested in the
estate.
867.02(2)(d)
(d) Notice. The court may hear the matter, including
the proof of the will, without notice to interested persons or order notice
to be given under s. 879.03. As soon as practicable after filing
the petition with the court, the petitioner shall give notice by certified
mail to the department of health and family services. After the filing
of the petition with the court, the petitioner shall publish notice to
creditors as a class 1 notice, under ch. 985, in a newspaper published
in the county.
867.02(2)(f)
(f) Special administrator may be appointed. If the
court deems it necessary, it may at any time during the proceeding appoint
a special administrator to aid in the proceeding.
867.02(2)(g)
(g) Order. If the court is satisfied that the estate
may be settled by this section, after filing of the petition and proof
of the will and after 30 days have elapsed since publication under par.
(d), it shall decide all claims and assign the property to the creditors
and persons interested who are entitled to it. The assignment shall
be subject to the unknown rights of creditors or persons interested in
the estate as limited in sub. (4). The court shall order any person
indebted to or holding money or other property of the decedent to pay the
indebtedness or deliver the property to the persons found to be entitled
to receive it. It shall order the transfer of interests in real estate,
stocks or bonds registered in the name of the decedent, the title of a
licensed motor vehicle or any other form of property. If the decedent
immediately prior to death had an estate for life or an interest as a joint
tenant in any property in regard to which a certificate of termination
under s. 867.04 has not been issued, the order shall set forth the termination
of the life estate or the right of survivorship of any joint tenant.
Every tract of real property in which an interest is assigned or terminated
or which is security for a debt in which an interest is assigned or terminated
shall be specifically described.
867.02(2)(h)
(h) Recording required. Whenever the order relates
to an interest in real property or to a debt which is secured by an interest
in real property, a certified copy or duplicate original of the order shall
be recorded by the petitioner in the office of the register of deeds in
each county in this state in which the real property is located.
867.02(2)(i)
(i) Mailing or delivery required. The petitioner shall
mail or deliver a copy of the order to all persons interested in the estate
whose post-office address is known to the petitioner or can with reasonable
diligence be ascertained.
867.02(3)
(3) Release of liability of transferor. Upon the payment,
delivery, transfer or issuance in accordance with the order of the court,
the persons making the payment, delivery, transfer or issuance are released
to the same extent as if the same had been made to a personal representative
of the estate of the decedent.
867.02(4)
(4) Rights of creditors and persons interested; statutes of limitation.
Creditors and persons interested in the estate who were not assigned the
property to which they were entitled from the estate may recover against
those assignees, or their respective bondsmen whose assigned shares have
been increased by reason of the fact that the creditor or person interested
was not assigned the share of the estate to which the creditor or person
interested was entitled. No assignee or assignee's bondsman shall
be liable for an amount greater than the value of the property which was
assigned to the assignee from the estate, the value to be determined as
of the time of the assignment. No action for the recovery of any
property assigned in the proceeding or for the value of such property shall
be brought by any creditor more than 3 months after the publication.
No action for the recovery of any property assigned in the proceeding or
for the value of such property may be brought by any person interested
more than 3 months after a copy of the order assigning the estate was mailed
or delivered to the person, or if the person's name or post-office address
could not have been ascertained by the exercise of reasonable diligence
on the part of the petitioner, then more than 3 months after a copy of
the order assigning the estate was mailed or delivered to any person interested.
867.02(5)
(5) Proceeding with or without attorney. Any party to a proceeding
under this section may commence or appear at such proceeding in his or
her own behalf, by an attorney or, if in the military service, by an attorney-in-fact,
but not otherwise.
867.02 - ANNOT.
History: 1971 c. 40 s. 93; 1973 c. 90, 243; 1975 c. 331, 421; 1977
c. 449; 1985 a. 278; 1987 a. 27 ss. 2160w, 2170d, 3200 (47); 1989 a. 234;
1991 a. 220; 1993 a. 16, 437, 486; 1995 a. 27 ss. 7195b to 7196, 9126 (19);
1999 a. 9, 94.
867.02 - ANNOT.The 3-month limitation under sub. (4) does not bar reconsideration of a summary assignment where there was constructive fraud in its procurement. In re Estate of Boots, 73 Wis. 2d 207, 243 N.W.2d 225.
867.03
867.03 Transfer by affidavit.
867.03(1c)
(1c) Definition. In this section, "guardian" has the meaning
given in s. 880.01 (3).
867.03(1g)
(1g) Generally. When a decedent leaves solely owned property
in this state which does not exceed $20,000 in value, any heir of the decedent
or person who was guardian of the decedent at the time of the decedent's
death may collect any money due the decedent, receive the property of the
decedent and have any evidence of interest, obligation to or right of the
decedent transferred to the affiant if the heir or guardian provides to
the person owing the money, having custody of the property or acting as
registrar or transfer agent of the evidences of interest, obligation to
or right, or, if the property is an interest in or lien on real property,
provides to the register of deeds preliminary to the recording required
under sub. (2m), proof of prior mailed notice under sub. (1m) if applicable
and an affidavit in duplicate showing all of the following:
867.03(1g)(a)
(a) A description of and the value of the property to be
transferred.
867.03(1g)(b)
(b) The total value of the decedent's property in this state
at the date of decedent's death.
867.03(1g)(c)
(c) Whether the decedent or the decedent's spouse ever received
the family care benefit under s. 46.286, medical assistance under subch.
IV of ch. 49, long-term community support services funded under s. 46.27
(7) or aid under s. 49.68, 49.683 or 49.685.
867.03(1m)
(1m) Notice of affidavit.
867.03(1m)(a)
(a) Whenever an heir or person who was guardian of the decedent
at the time of the decedent's death intends to transfer a decedent's property
by affidavit under sub. (1g) and the decedent or the decedent's spouse
ever received the family care benefit under s. 46.286, medical assistance
under subch. IV of ch. 49, long-term community support services funded
under s. 46.27 (7) or aid under s. 49.68, 49.683 or 49.685, the heir or
person who was guardian of the decedent at the time of the decedent's death
shall give notice to the department of health and family services of his
or her intent. The notice shall include the information in the affidavit
under sub. (1g) and the heir or person who was guardian of the decedent
at the time of the decedent's death shall give the notice by certified
mail, return receipt requested.
867.03(1m)(b)
(b) An heir or person who was guardian of the decedent at
the time of the decedent's death who files an affidavit under sub. (1g)
that states that the decedent or the decedent's spouse received the family
care benefit under s. 46.286, medical assistance under subch. IV of ch.
49, long-term community support services funded under s. 46.27 (7) or aid
under s. 49.68, 49.683 or 49.685 shall attach to the affidavit the proof
of mail delivery of the notice required under par. (a) showing a delivery
date that is not less than 10 days before the day on which the heir or
person who was guardian of the decedent at the time of the decedent's death
files the affidavit.
867.03(2)
(2) Release of liability of transferor. Upon the transfer
to the heir or person who was guardian of the decedent at the time of the
decedent's death furnishing the affidavit with an attached proof of mail
delivery if required under sub. (1m) (b), the transferor is released to
the same extent as if the transfer had been made to the personal representative
of the estate of the decedent.
867.03(2m)
(2m) Recording of affidavit.
867.03(2m)(a)
(a) If an affidavit under sub. (1g) describes an interest
in or lien on real property a certified copy or duplicate original of the
affidavit shall be recorded in the office of the register of deeds in each
county in this state in which the real property is located.
867.03(2m)(b)
(b) For purposes of a transfer under this section of an interest
in or lien on real property, the recording of the affidavit copy or duplicate
original constitutes the transfer to the affiant under sub. (1g) of the
evidence of the interest in or lien on real property.
867.03(3)
(3) Applicability. This section is additional to s. 109.03
(3) for payment of decedent's wages by an employer directly to the decedent's
dependents.
867.03 - ANNOT.
History: 1973 c. 43; 1975
c. 380 s. 5; 1979 c. 29; 1989 a. 234; 1993 a. 16, 205, 437; 1995 a. 27
ss. 7197b to 7199c, 9126 (19); 1997 a. 27; 1999 a. 9, 94.
867.035
867.035 Transfer by affidavit; recipients of certain benefits.
867.035(1)
(1)
867.035(1)(a)
(a) Except as provided in par. (bm), the department of health
and family services may collect from the property of a decedent, including
funds of a decedent that are held by the decedent immediately before death
in a joint account or a P.O.D. account, by affidavit under this section
an amount equal to the medical assistance that is recoverable under s.
49.496 (3) (a), the long-term community support services under s. 46.27
that is recoverable under s. 46.27 (7g) (c) 1., the family care benefit
that is recoverable under rules promulgated under s. 46.286 (7) or the
aid under s. 49.68, 49.683 or 49.685 that is recoverable under s. 49.682
(2) (a) and that was paid on behalf of the decedent or the decedent's spouse,
if all of the following conditions are satisfied:
867.035(1)(a)1.
1. No person files a petition for administration or summary
settlement of the decedent's estate within 20 days of death.
867.035(1)(a)2.
2. The decedent died after September 30, 1991.
867.035(1)(a)3.
3. The decedent is not survived by a spouse, a child who
is under age 21 or a child who is disabled, as defined in s. 49.468 (1)
(a) 1.
867.035(1)(a)4.
4. The value of the solely owned property in this state left
by the decedent, after payment of burial costs, does not exceed the amount
under s. 867.03 (1g) (intro.).
867.035(1)(bm)
(bm) The department of health and family services may not
collect by affidavit under this section from any of the following property
of the decedent:
867.035(1)(bm)1.
1. Interests in or liens on real property.
867.035(1)(bm)2.
2. Wearing apparel and jewelry.
867.035(1)(bm)3.
3. Household furniture, furnishings and appliances.
867.035(1)(bm)4.
4. Motor vehicles and recreational vehicles.
867.035(2)
(2) A person who possesses property of a decedent shall transmit
the property to the department of health and family services upon receipt
of an affidavit by a person designated by the secretary of health and family
services to administer this section showing that the conditions in sub.
(1) (a) are satisfied. Upon transmittal, the person is released from
any obligation to other creditors or heirs of the decedent.
867.035(3)
(3) If a person has a valid claim against the decedent's estate
that would have a higher priority under s. 859.25 (1) if the estate were
administered than the department of health and family services would have
under s. 859.25 (1) (e) and the person demands payment in writing within
one year of the date on which the property was transmitted to the department,
the department shall pay to the person the value of the property collected
under sub. (2) or the amount of the claim, whichever is less. The
department may authorize any person who possesses property of the decedent
to honor higher priority claims with the decedent's property before transmitting
property to the department.
867.035(4)
(4) From the appropriation under s. 20.435 (4) (im), with respect
to funds collected by the department under sub. (1) related to medical
assistance paid on behalf of the decedent or the decedent's spouse, the
department of health and family services shall pay claims under sub. (3),
shall pay to the federal government from the amount recovered under this
section and not paid out as claims under sub. (3) an amount equal to the
amount of federal funds used to pay the benefits recovered under this section
and shall spend the remainder of the amount recovered under this section
for medical assistance benefits under subch. IV of ch. 49.
867.035(4m)
(4m) From the appropriation under s. 20.435 (7) (im), with respect
to funds collected by the department under sub. (1) related to long-term
community support services funded under s. 46.27 (7) paid on behalf of
the decedent or the decedent's spouse, the department of health and family
services shall pay claims under sub. (3) and shall spend the remainder
of the funds recovered under this section for long-term community support
services funded under s. 46.27 (7).
867.035(5)
(5) The department of health and family services shall promulgate
rules establishing standards to determine whether the application of this
section would work an undue hardship in individual cases. If the
department of health and family services determines that the application
of this section would work an undue hardship in a particular case, the
department shall waive the application of this section in that case.
867.035 - ANNOT.
867.04
867.04 Termination of joint tenancy and life estate.
If a domiciliary of this state dies who immediately prior to death had
an estate for life or an interest as a joint tenant in any property, or
if a person not domiciled in this state dies having such an interest in
property in this state, upon petition of any person interested in the property
to the court of the county of domicile of the decedent, or if the decedent
was not domiciled in this state, of any county where the property is situated,
the court shall issue a certificate, under the seal of the court.
The certificate shall set forth the fact of the death of the life or joint
tenant, the termination of the life estate or joint tenancy interest, the
right of survivorship of any joint tenant and any other facts essential
to a determination of the rights of persons interested. The certificate
is prima facie evidence of the facts recited, and if the certificate relates
to an interest in real property or to a debt that is secured by an interest
in real property, a certified copy or duplicate original of the certificate
shall be recorded by the petitioner in the office of the register of deeds
in each county in this state in which the real property is located.
867.04 - ANNOT.
History: 1977 c. 449; 1999
a. 85.
867.04 - ANNOT.
Cross-references: See s. 863.27
which deals with the termination of life estate and joint tenancy in the
final judgment of an estate.
867.04 - ANNOT.
See s. 865.20 which provides
an alternative method of termination of joint tenancy.
867.045
867.045 Administrative joint tenancy or life estate termination
for certain property.
867.045(1)
(1) Upon the death of any person having an interest as a joint
tenant or life tenant in any real property or in the vendor's interest
in a land contract or a mortgagee's interest in a mortgage, the surviving
joint tenant or remainderman may obtain evidence of the termination of
that interest of the decedent by providing to the register of deeds of
the county in which such property is located a certified copy of the death
certificate for the decedent and by providing, on applications supplied
by the register of deeds for that purpose, the name and address of the
decedent and of the surviving joint tenant or remainderman and the date
of the decedent's death. The surviving joint tenant or remainderman
shall provide to the register of deeds the following information:
867.045(1)(j)
(j) In the case of real property, a copy of the property
tax bill for the year preceding the year of the decedent's death and a
legal description of the property, which description shall be imprinted
on or attached to the application. The register of deeds shall record
the bill.
867.045(1)(k)
(k) In the case of a joint tenancy or life estate, a copy
of the deed that creates the interest.
867.045(2)
(2) The register of deeds or other person authorized under s. 706.06
or 706.07 shall complete a statement at the foot of the application, declaring
that the surviving joint tenant or remainderman appeared before him or
her and verified, under oath, the correctness of the information required
by sub. (1).
867.045(3)
(3) The register of deeds shall then mail, or deliver, copies of
such application to the circuit court for the county of residence of the
decedent, unless the clerk of courts notifies the register of deeds in
writing that this procedure is unnecessary.
867.045(4)
(4) Upon the recording, the application shall be presumed to be
evidence of the facts recited and shall terminate the joint tenancy or
life estate, all with the same force and effect as if issued by the court
assigned to exercise probate jurisdiction for the county of domicile of
the decedent under s. 867.04. This application shall not constitute
evidence of payment of any death tax which may be due, the payment for
which shall remain an obligation of the surviving joint tenant or remainderman.
867.045 - ANNOT.
History: 1973 c. 41, 84, 90; 1975 c. 127, 200, 262, 421; 1977 c.
449 ss. 422, 497; 1981 c. 299, 376, 391; 1987 a. 27; 1991 a. 133; 1995
a. 182.
867.045 - ANNOT.
Cross-reference: See s. 865.20 which provides an alternative method
of termination of joint tenancy.
867.045 - ANNOT.
The termination of a joint tenancy in a vendee's interest in a
land contract may be perfected of record under the procedure in s. 867.045.
OAG 1-97.
867.045 - ANNOT.
This section neither requires that all remainderpersons appear
before the register of deeds to verify information contained in a form
executed to meet the requirements of this section nor to complete the form
before it may be recorded. OAG 2-98.
867.046
867.046 Summary confirmation of interest in property.
867.046(1)
(1) Definitions. In this section:
867.046(1)(a)
(a) "Beneficiary of a marital property agreement" means a
designated person, trust or other entity having an interest in property
passing by nontestamentary disposition under s. 766.58 (3) (f).
867.046(1)(b)
(b) "Survivorship marital property" means property held under
s. 766.60 (5) (a).
867.046(1m)
(1m) Upon death; generally. If a domiciliary of this state
dies who immediately prior to death had an interest in property in this
state, including an interest in survivorship marital property, or if a
person not domiciled in this state dies having an interest in property
in this state, including an interest in survivorship marital property,
upon petition of the decedent's spouse or upon petition of a beneficiary
of a marital property agreement to the court of the county of domicile
of the decedent or, if the decedent was not domiciled in this state, of
any county where the property is situated, the court shall issue a certificate
under the seal of the court. The certificate shall set forth the
fact of the death of the decedent, the termination or transfer of the decedent's
interest in the property, the interest of the petitioner in the property
and any other facts essential to a determination of the rights of persons
interested. The certificate is prima facie evidence of the facts
recited, and if the certificate relates to an interest in real property
or to a debt secured by an interest in real property, the petitioner shall
record a certified copy or duplicate original of the certificate in the
office of the register of deeds in each county in this state in which the
real property is located.
867.046(2)
(2) Upon death; interest in property. As an alternative to
sub. (1m), upon the death of any person having an interest in any real
property, a vendor's interest in a land contract, an interest in a savings
or checking account, an interest in a security or a mortgagee's interest
in a mortgage, including an interest in survivorship marital property,
the decedent's spouse or a beneficiary of a marital property agreement
may obtain evidence of the termination of that interest of the decedent
and confirmation of the petitioner's interest in the property by providing
to the register of deeds of the county in which the property is located
the certified death certificate for the decedent and, on applications supplied
by the register of deeds for that purpose, all of the following information:
867.046(2)(a)
(a) The name, residence and post-office addresses of the
decedent and the applicant.
867.046(2)(b)
(b) The date of decedent's death.
867.046(2)(i)
(i) In the case of real property, a copy of the property
tax bill for the year preceding the year of the decedent's death and a
legal description of the property, which description shall be imprinted
on or attached to the application. The register of deeds shall record
the bill.
867.046(2)(j)
(j) In the case of a joint tenancy or life estate, a copy
of the deed that creates the interest.
867.046(2m)
(2m) Third-party confirmation. If the personal representative,
decedent's spouse or a beneficiary of a marital property agreement does
not commence proceedings to confirm an interest under this section or s.
863.27 or 865.201 within 90 days after the decedent's death, any interested
person may petition or apply under this section.
867.046(3)
(3) Completion of application. The register of deeds or other
person authorized under s. 706.06 or 706.07 shall complete a statement
at the foot of the application, declaring that the applicant or, if the
applicant is not an individual, a representative of the applicant appeared
before him or her and verified, under oath, the correctness of the information
required by sub. (2).
867.046(4)
(4) Delivery of application. The register of deeds shall
mail or deliver a copy of the application to the circuit court for the
county of residence of the decedent, unless the clerk of courts notifies
the register of deeds in writing that this procedure is not necessary.
867.046(5)
(5) Recording; termination of property interest. Upon the
recording, the application constitutes prima facie evidence of the facts
recited and constitutes the termination of the property interest, with
the same force and effect as if issued by the court assigned to exercise
probate jurisdiction for the county of domicile of the decedent under s.
867.04.
867.046(6)
(6) Purchasers from petitioners protected. If an interest
in property transferred under this section is acquired from the petitioner
by a purchaser or lender in good faith, for value and without actual notice
that the transfer was improper, the purchaser or lender takes title free
of any claims of the decedent's estate and incurs no personal liability
to the estate, whether or not the transfer was proper. Purchasers
and lenders have no duty to inquire whether a transfer was proper.
867.046 - ANNOT.
History: 1983 a. 186; 1985 a. 37; 1991 a. 133, 301; 1995 a. 182,
355.
867.046 - ANNOT.
NOTE: 1991 Wis. Act 301, which affected this section, contains
extensive legislative council notes.
867.05
867.05 Determination of descent of property.
867.05(1)
(1) Petition. Six years or more after any person dies intestate,
leaving an estate which a court in this state has jurisdiction to administer,
any person interested in the estate or in any property in the estate may
petition the court which has jurisdiction to administer the estate, to
determine the descent of the property in the estate. The petition
shall be verified and shall show, as particularly as known or can with
due diligence be ascertained, the time and place of death and domicile
of the decedent, that the estate has not been administered and the other
facts which authorize the proceeding, the names, post-office addresses
and relationship to the decedent of all heirs and their grantees entitled
to any interest in the property, stating who are minors or under legal
disability, and the names and addresses of their guardians, and a description
of all property for which a determination of descent is sought.
867.05(2)
(2) Certificate after hearing without notice. The court may
hear the petition without notice, and after hearing the evidence, if the
court is satisfied who the heirs of the decedent are and what their respective
rights and interests in the property are, the court shall certify the same
and in its certificate shall name the persons entitled to interests therein
and the property to which each is entitled. The certificate is prima
facie evidence of the facts recited.
867.05(3)
(3) Judgment after hearing on notice. The court may hear
the petition after notice of hearing given under s. 879.03, and after hearing
the evidence, if the court is satisfied who the heirs of the decedent are
and what their respective rights and interests in the property are, the
court shall determine the same and in its judgment shall name the persons
entitled to interests therein and the property to which each is entitled.
867.05(4)
(4) Recording required. Whenever the certificate or judgment
relates to an interest in real property or to a debt which is secured by
an interest in real property, a certified copy or duplicate original of
the certificate or judgment shall be recorded by the petitioner in the
office of the register of deeds in each county in this state in which such
real property is located.
867.05(5)
(5) Special administration. When no administration proceeding
has been commenced or no complete tax return has been filed, any person,
including the department of revenue, interested in the property, the transfer
of which is subject to tax under ch. 72, may petition for appointment of
a special administrator with powers to determine the tax, if:
867.05(5)(a)
(a) No petition for administration of property of a decedent
is made within 60 days after the decedent's death and the property's transfer
appears to be taxable under ch. 72;
867.05(5)(b)
(b) Administration has been completed without determining
the tax;
867.05(5)(c)
(c) No tax is due and that fact has not been formally determined;
867.05(5)(d)
(d) A certificate of survivorship, heirship or assignment
has been issued under s. 867.04, 867.05 or 868.05;
867.05(5)(e)
(e) Assets upon the transfer of which no tax has been paid
are discovered; or
867.05(5)(f)
(f) Property was transferred in contemplation of the death
of the transferor and no application for the adjustment or payment of the
tax has been made within 60 days of the transferor's death.
Small Estate Affidavit for Estates under 20,000
