856.23 Persons who are disqualified.

(1) A person including the person named in the will to act as personal representative is not entitled to receive letters if the person is any of the following:

(a) Under 18 years of age.

(b) Of unsound mind.

(c) A corporation not authorized to act as a fiduciary in this state.

(d) A nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and filed the appointment with the court.

(e) A person whom the court considers unsuitable for good cause shown.

(2) Nonresidency may be a sufficient cause for nonappointment or removal of a person in the court's discretion.

History: 1971 c. 213 s. 5; 1993 a. 486; 2001 a. 102.

A nominee may not be found “unsuitable" except upon grounds pertaining to capacity or competence to administer the estate. State ex rel. First National Bank & Trust v. Skow, 91 Wis. 2d 773, 284 N.W.2d 74 (1979).

If a trust document allows the beneficiaries to select a successor trustee but does not specifically allow appointment without court approval, the instrument should be read to permit nomination of a trustee subject to court approval. Matter of Sherman B. Smith Family Trust, 167 Wis. 2d 196, 482 N.W.2d 118 (Ct. App. 1992).

A finding of unsuitability is not limited solely to concerns of incapacity or incompetency. Given the myriad circumstances in which conflicts of interests may arise a conflicting personal interest may prevent an executor or administrator from doing his or her duty and render him or unsuitable. But disputes over what assets are included in the estate do not render a person unsuitable. Section 859.09 provides the framework for addressing such disagreements. Klauser v. Schmitz, 2003 WI App 157, 265 Wis. 2d 860, 667 N.W.2d 862, 02-3260.

A resident agent appointed under this section is not an indispensable party in an action involving the estate. Bugbee v. Donahue, 483 F. Supp. 1328 (1980).