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 s. 863.23 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.
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