Personal Representatives and Trustees can ask the Court for guidance on difficult or contentious issues.

01.24.2023

Author:  Attorney Eric S. Johnson

A Personal Representative must follow the directives left in the Will. A Trustee needs to administer the Trust in accordance with the terms of the Trust document. They must also comply with the applicable statutes (Wis. Stat. Ch. 851-879 for Personal Representatives and Wis. Stat. Ch. 701 for Trustees).

Most of the time, the applicable documents or statutes will provide definitive answers to how the Personal Representative or Trustee should act. Occasionally, however, the documents are unclear, the documents or statutes create duties that conflict, or a situation arises that the documents or statutes do not address. Beneficiaries may also disagree on the meaning of the documents or statutes, or object to a proposed action.

Faced with those situations, a Personal Representative or Trustee could proceed with the administration, relying on their best judgment and the advice of legal counsel. Doing so, however, creates the risk that beneficiaries will challenge the action in Court. Such challenges increase the time and cost of the administration. They could also lead to the Court finding the Personal Representative or Trustee liable for taking an action the Court deems incorrect.

Fortunately, Personal Representatives or Trustees can ask the Court for instructions on how to handle a situation. Wisconsin Statute Section 879.69 permits a Personal Representative to file a petition requesting “a rule or order in regard to any matter connected with the administration of the estate.” All persons interested in the estate must be provided with notice of the Petition. The Court will hold a hearing to be advised of the issues and positions of the Personal Representative and beneficiaries before ruling.

Wisconsin Statute Section 701.0201 authorizes a Trustee to petition the Court for instructions or to resolve questions in the administration of the Trust. As before, persons interested in the Trust must be provided with notice of the petition. They will have the opportunity to present their positions.

A Personal Representative or Trustee should follow the governing document or law, if it is clear. If that is not sufficient, they should consult with the persons interested and attempt to reach unanimous compromise that is documented in writing. If that is not possible, they should consider asking the Court for guidance using the statutes cited in this article. The time and money spent filing the petition and receiving instructions is often a fraction of the cost of choosing the wrong course of action and having to undo it.