Section 867.05. Determination of descent of property.

 

(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.

(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.

(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.

(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.

(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:

(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 ;

(b) Administration has been completed without determining the tax;

(c) No tax is due and that fact has not been formally determined;

(d) A certificate of survivorship, heirship or assignment has been issued under s. 867.04 , 867.05 or 868.05 ;

(e) Assets upon the transfer of which no tax has been paid are discovered; or

(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.

(6)   Procedure.

(a) Prior to acting under sub. (5) , the special administrator shall, by certified mail, notify the distributee of the basis of his or her authority under sub. (5) .

(c) Costs and expenses properly incurred by a special administrator shall be paid out of the subject property or by the distributee thereof.

1971 c. 310 ; 1973 c. 90 ; 1987 a. 27 s. 1531m . A "Simple" Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin's Statutes for Probate Summary Procedures. Johnson. 2008 WLR 612.