At Issue

Recently Passed Legislation

Return Fairness to Inventory Filing Fee

Proposed 1997 LRB 3037 seeks to amend the statutes to specify the inventory of a decedent's estate list only property that is subject to administration by the register in probate and that the inventory filing fee is based only upon property listed in the inventory.

By Sen. Joanne Huelsman

Most attorneys who practice probate law in Wisconsin would accept the proposition that jointly held property passes outside the probate process and is not subject to administration by the register in probate.

Due to a recent attorney general's opinion, that is no longer the case. Registers in probate have started to charge inventory filing fees on property that traditionally has not been subject to administration.

For that reason, I am sponsoring new legislation (1997 LRB 3037) to clearly specify that registers in probate can charge a fee only on the value of property that requires some action by either the register in probate or the court during the probate process. LRB 3037 will end the increasingly common practice of charging a fee on property that is not and should not be part of the administration of a probated estate.

According to section 814.66(1)(a)(2) of the Wisconsin Statutes, the inventory filing fee is to be based upon the decedent's "gross estate." Wisconsin law does not define the term "gross estate." However, section 858.07 of the Wisconsin Statutes specifies that the inventory itself is to include "all property subject to administration and shall list joint and life tenancies."

In an opinion released in December 1996, the attorney general relied upon federal tax law to define "gross estate" to include the decedent's interest in jointly held property. The attorney general also said, "Because joint property must be included in [the] inventory, it is considered subject to administration." Therefore, the attorney general concluded, a decedent's interest in joint property is subject to the probate filing fee.

There are at least two problems with this opinion. The first is the inventory filing fee charged on jointly held property, even though no action is required by the register in probate or the court to transfer the decedent's interest in such jointly held property. This practice, I believe, is simply bad public policy because, in effect, it taxes property over which neither the register in probate nor the court have any jurisdiction.

The second problem with the opinion is that it gives no reason not to extend the attorney general's reasoning to other forms of property (other than joint tenancies) that are not subject to the probate procedure but are part of the federal taxable estate. In fact, at least one register in probate in my Senate district has already indicated an intention to charge an inventory filing fee on assets passing under a "Washington will" or the provisions of any other marital property agreement.

Sen. Joanne Huelsman (R-Waukesha) is a member and former chair of the Senate Judiciary Committee. Sen. Huelsman, Marquette 1980, is a uniform law commissioner and practicing attorney.

To remedy the problem created by this opinion, LRB 3037 simply changes section 858.07 to specify that the inventory shall list only property that is subject to administration. The current requirement of listing joint and life tenancies will be eliminated. The bill further amends section 814.66(1)(a)(2) to specify that the inventory filing fee is based only upon the property listed in the inventory, less encumbrances, charges and liens.

LRB 3037 will end the irritating and unfair practice of collecting a fee based upon the value of property that passes outside of the probate process and is not subject to administration.

Wisconsin Lawyer