853.35(5)
(5) Sale by guardian or conservator of incompetent. If property which is the subject of a specific gift is sold by a guardian or conservator of the testator or a condemnation award or insurance proceeds are paid to a guardian or conservator, the specific beneficiary has the right to a general pecuniary legacy equivalent to the proceeds of the sale or the condemnation award as defined in
sub. (4) or the insurance proceeds, reduced by any amount expended or incurred in restoration or repair of the property. This provision does not apply if testator subsequent to the sale or award or receipt of insurance proceeds is adjudicated competent and survives such adjudication for a period of one year; but in such event sale by a guardian or conservator within 2 years of testator's death is a sale by the testator within the meaning of
sub. (3).
853.35(6)
(6) Securities. If securities are specifically willed to a beneficiary, and subsequent to execution of the will, other securities in the same or another entity are distributed to the testator by reason of the testator's ownership of the specifically bequeathed securities and as a result of a partial liquidation, stock dividend, stock split, merger, consolidation, reorganization, recapitalization, redemption, exchange, or any other similar transaction, and if such other securities are part of testator's estate at death, the specific gift is deemed to include the additional or substituted securities. "Securities" has the same meaning as in
s. 853.33.
853.35(7)
(7) Reduction of recovery by reason of expenses and taxes. Throughout this section the amount the specific beneficiary receives is reduced by any expenses of the sale or of collection of proceeds of insurance, sale, or condemnation award and by any amount by which the income tax of the decedent or the decedent's estate is increased by reason of items covered by this section. Expenses include legal fees paid or incurred.
853.35 History
History: 1993 a. 486.
853.40
853.40
Disclaimer of transfers by will, intestacy or appointment. 853.40(1)(a)
(a) "Beneficiary under a will" includes a beneficiary of a trust or any other interest created by a will.
853.40(2)(a)(a)
In general. A person who is an heir, person succeeding to a disclaimed intestate interest, beneficiary under a will, person succeeding to a disclaimed interest created by will, donee of a power created by will, appointee under a power exercised by will or taker in default under a power created by will or a guardian of any person identified in this paragraph if that guardian is qualified to disclaim and if that guardian disclaims for the guardian's ward may disclaim any property or interest in property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.
853.40(2)(b)
(b)
Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by will or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the will or by the instrument exercising the power.
853.40(2)(c)
(c)
Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
853.40(2)(d)
(d)
After death. A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all interested persons if the personal representative or special administrator has not taken any action which would bar the right to disclaim under
sub. (7) (a) and if the right to disclaim is not otherwise barred under
sub. (7) (b) or
(c).
853.40(3)(a)2.
2. Declare the disclaimer and the extent of the disclaimer;
853.40(3)(b)
(b) Notwithstanding
par. (a), any disclaimer which meets the requirements of section
2518 of the internal revenue code, or any other provisions of federal law, constitutes an effective disclaimer under this section.
853.40(4)(a)(a)
Disclaiming a present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the death of the deceased transferor of property or the deceased donee of a power, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just.
853.40(4)(b)
(b)
Disclaiming a future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property or interest is finally ascertained and his or her interest indefeasibly fixed, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just.
853.40(4)(c)
(c)
Future right to income or profits. Notwithstanding
pars. (a) and
(b), an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.
853.40(4)(d)
(d)
Persons under 21. Notwithstanding
pars. (a) and
(b), a person under 21 years of age may disclaim at any time not later than 9 months after the day on which the person attains 21 years of age.
853.40(4)(e)
(e)
Interests arising by disclaimer. Notwithstanding
pars. (a) and
(b), a person whose interest in property arises by disclaimer, or by default of exercise of a power created by will, may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered or the date of death of the donee of the power, as the case may be.
853.40(5)
(5) Delivery and filing of disclaimer. 853.40(5)(a)(a)
Delivery. In addition to any requirements imposed by the creating instrument, the instrument of disclaimer is effective only if, within the time specified under
sub. (4), it is delivered to and received by:
853.40(5)(a)1.
1. The personal representative or special administrator of the deceased transferor of the property; or
853.40(5)(b)
(b)
Delivery to trustee. If the trustee of any trust to which the interest or power relates does not receive the instrument of disclaimer under
par. (a), a copy shall also be delivered to the trustee.
853.40(5)(c)
(c)
Filing. A copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
853.40(5)(d)
(d)
Failure to deliver or file. Failure to deliver a copy of the instrument of disclaimer to the trustee under
par. (b), or to file a copy in the probate court under
par. (c), within the time specified under
sub. (4), does not affect the validity of any disclaimer.
853.40(5)(e)
(e)
Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
853.40(6)(a)(a)
Property not vested. The property or interest disclaimed under this section shall be deemed not to have been vested in, created in or transferred to the disclaimant.
853.40(6)(b)
(b)
Devolution. Unless the deceased transferor of the property or deceased donee of the power has otherwise provided, the property or interest disclaimed devolves as if the disclaimant had predeceased the deceased transferor of the property, or, if the disclaimant is an appointee under a power exercised by will or a taker in default under a power created by will, as if the disclaimant had predeceased the donee of the power. A disclaimer relates back for all purposes to the date of death of the deceased transferor of the property or the deceased donee of the power, except that a disclaimer of the future right to receive mandatory distributions of income or profits relates to the period stated in the disclaimer.
853.40(6)(c)
(c)
Future interest. Unless the instrument creating the future interest manifests a contrary intent, a future interest to take effect in possession or enjoyment after the termination of the interest which is disclaimed takes effect as if the disclaimant had predeceased the deceased transferor of the property or the deceased donee of the power.
853.40(7)(a)(a)
Method. A person's right to disclaim property or an interest in property is barred by the person's:
853.40(7)(a)1.
1. Assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract therefor;
853.40(7)(a)3.
3. Acceptance of the property or interest or benefit of the property.
853.40(7)(b)
(b)
Payment of debt. A person's right to disclaim property or an interest in property is barred if there is a pending proceeding under
s. 863.46 for the payment of a debt.
853.40(7)(c)
(c)
Effect upon successor in interest. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under that person.
853.40(8)
(8) Nonexclusiveness of remedy. This section does not abridge the right of a person to waive, release, disclaim or renounce property or an interest in property under any other statute, the common law or as provided in the creating instrument.
853.40(9)
(9) Applicability. This section applies to property or an interest in property existing or created on or after May 13, 1978 if the time for delivery of a disclaimer under this section has not expired.
853.40 Annotation
Unless barred by statute, debtor can disclaim bequest, thus defeating creditor's action under 813.026. Estate of Goldhammer v. Goldhammer, 138 W (2d) 77, 405 NW (2d) 693 (Ct. App. 1987).
853.40 Annotation
Except for a tax-related "qualified disclaimer", the nine-month time limit for disclaimer of a future interest under sub. (4) (b) commences on the death of the life tenant. Estate of Balson, 183 W (2d) 31, 515 NW (2d) 474 (Ct. App. 1994).
853.50(1)
(1) "By right of representation" means that the issue of a deceased person inherit the share of an estate that their immediate ancestor would have inherited, if living.
853.50(2)
(2) "Children" includes all children whether born or adopted before or after a Wisconsin basic will or basic will with trust is executed.
853.50(3)
(3) "Issue" means children, grandchildren, great-grandchildren, and lineal descendants of more remote degrees, including those who occupy that relation by reason of adoption under
s. 851.51 and children who are not legitimate and their lineal descendants to the extent provided by
s. 852.05.
853.50(4)
(4) "Testator" means any person choosing to make a Wisconsin basic will or basic will with trust.
853.50(5)
(5) "Trustee" means a person so designated in a Wisconsin basic will with trust and any other person acting at any time as the trustee under a Wisconsin basic will with trust.
853.50(6)
(6) "Wisconsin basic will" means a Wisconsin basic will executed in accordance with
ss. 853.50 to
853.62.
853.50(7)
(7) "Wisconsin basic will with trust" means a Wisconsin basic will with trust executed in accordance with
ss. 853.50 to
853.62.
853.50 History
History: 1983 a. 376.
853.51
853.51
Execution of will. The only method of executing a Wisconsin basic will or basic will with trust is for all of the following to occur:
853.51(1)
(1) The testator shall do all of the following:
853.51(1)(a)
(a) Complete the blanks, boxes and lines according to the instructions. Any failure to comply with instructions described under
s. 853.54 (3) does not affect the validity of the will.
853.51(2)
(2) The witnesses shall do all of the following:
853.51(2)(b)
(b) Sign their names in the presence of the testator and each other.
853.51 History
History: 1983 a. 376.
853.52
853.52
Contents of wills. 853.52(1)(1) There are 2 Wisconsin basic wills: the Wisconsin basic will and the Wisconsin basic will with trust.
853.52(2)
(2) The Wisconsin basic will includes all of the following:
853.52(3)
(3) The Wisconsin basic will with trust includes all of the following:
853.52(3)(a)
(a) The contents of the form for the Wisconsin basic will with trust under
s. 853.56.
853.52(4)
(4) Any person who prints forms for the Wisconsin basic will or basic will with trust shall place a signature line on each page of the printed document. A testator shall sign on each such line. Failure to comply with this subsection does not affect the validity of the will.
853.52 History
History: 1983 a. 376;
1993 a. 304.
853.53
853.53
Selection of property disposition clause. If more than one property disposition clause is selected or if none is selected, the residuary property of a testator who signs a Wisconsin basic will or basic will with trust shall be distributed to the testator's heirs as if the testator did not make a will.
853.53 History
History: 1983 a. 376.
853.54
853.54
Revocation or revision.
