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.
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.
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.
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
