Sure, I Can Help You with That: Petitioning a Wisconsin Probate Court to Decide Who Controls the Final Disposition of a Decedent’s Remains
Vincent J. Scipior and Andrew J. Lawton, Coyne, Schultz, Becker & Bauer, S.C.

We all get asked from time to time if we can help a friend or family member with a legal matter outside of insurance defense work. Usually, we refer the person to an expert in that field, whether it be criminal law, family law, bankruptcy law, etc. Occasionally, however, we get asked to help with something that is out of our comfort zone, but still within our skill set. 

For example, I was recently asked by a distant relative if I could help him settle a dispute with his ex-wife regarding the final disposition of their deceased son’s remains. The son died unexpectedly without a will and without a surviving spouse or any children. My relative wanted to cremate his son’s body, as that was his son’s express wishes. His ex-wife wanted a burial. She hired an attorney who was pressuring him to give in and the funeral home was refusing to do anything until a consensus was reached. My initial reaction: I have no idea what to do. But after some research, I found out I could actually help.

I.              Where Do I Start?

The first question my relative asked was, “What kind if attorney do I need?” I was not quite sure, so I did what most people would do – I Googled it. I searched, “Wisconsin law + death + decision + burial + cremation.” One of the top results was Wis. Stat. § 154.30, which is titled, “Control of final disposition of certain human remains.” I was on the right track.

According to Wis. Stat. § 154.30, when a person dies without a written instrument designating a person to control the final disposition of their remains, subsection (2) creates a hierarchy of priority of individuals (similar to the wrongful death statute, Wis. Stat. § 895.04) who may control the location, manner, and conditions of a decedent’s final disposition. The first level of priority is the surviving spouse of the decedent.[1] If the decedent was unmarried, the next level of priority is the surviving child(ren) of the decedent.[2] If the decedent was survived by more than one child, the majority of the surviving children has control of the final disposition.[3] If the decedent died without a spouse or children, the next level of priority is the surviving parents of the decedent.[4]

I was starting to get somewhere. I now knew that, because the decedent died without a will and without a surviving spouse or children, his parents had the right to control the final disposition of his remains. Seems straightforward, but what happens when the parents cannot agree?

Pursuant to Wis. Stat. § 154.30(c)1., if the individuals on the same level of priority are unable to agree on the location, manner, and/or conditions of a decedent’s final disposition, they may petition the probate court for the county in which the decedent resided at the time of his or her death to designate an individual “as most fit and appropriate to control the final disposition.” In reaching a decision, Wis. Stat. § 154.30(3)(c)2. lists five non-exhaustive factors that the probate court may consider: 

1. The reasonableness and practicality of the proposed final disposition;
2. The degree of the personal relationship between the decedent and each of the individuals claiming the right of final disposition, including whether the decedent was estranged from any of the individuals;
3. The desires of the individual or individuals who are ready, able, and willing to pay the cost of the final disposition;
4. The express written desires of the decedent; and
5. The degree to which any proposed final disposition would permit maximum participation by family members, friends, and others who wish to pay final respects to the decedent.

Now I knew what had to happen – my relative needed to file a petition with the probate court asking that he be designated the person most fit and appropriate to control the final disposition of his son’s remains. His son resided in West Allis at the time of his death, so the petition needed to be filed in Milwaukee County Probate Court. I searched the probate forms on the Wisconsin Court System website for an example petition, but there were none.[5] I called a probate attorney I know and she did not have any examples either.

In speaking with my relative, I also learned that his son and ex-wife were estranged at the time of his death. Under Wis. Stat. § 154.30(3)(b)4., an individual who is otherwise authorized to control disposition under the order of priority specified in the statute, but who was estranged from the decedent at the time of their death, loses their right to control the decision. Thus, I knew there was another avenue for my relative to obtain the relief he sought: petition the probate court for a determination that his son and ex-wife were estranged at the time of his death, such that the ex-wife does not have the right to control the disposition of their son’s remains under Wis. Stat. § 154.30(3)(b)4. If the court ruled they were estranged, my relative would have the sole right of control under Wis. Stat. § 154.30(2)(a)4.

It was at this point that I felt qualified to assist my relative. I could draft and file the petition and attend an evidentiary hearing if necessary. My next question, though, was whether I could ethically represent my relative.

II.            Can I Ethically Do This?

I had never represented a relative before. I was not sure if there were any rules prohibiting or regulating representation of family members. So, I looked at the Rules.

Nothing in the Supreme Court Rules (SCR) outright prohibits representing friends or family members in legal proceedings or assisting them with legal matters. I identified one Rule in particular, however, that could be relevant.

Rule 20:1.7 prohibits representation that involves a concurrent conflict of interest, which can exist if (1) one client would be directly adverse to another; or (2) if there was a significant risk that the representation of one or more clients would be materially limited by the lawyer’s responsibilities to another client, a former client or third person or by a personal interest of the lawyer. The rule goes on to note, among other provisions, that a lawyer may represent a client even if a conflict in these circumstances exists if the lawyer believes they can provide competent and diligent representation to each client and each client gives informed consent to waive the conflict.

On its face, Rule 20:1.7 may not seem all that relevant. But it is the last part of the Rule (“a lawyer shall not represent a client if … there is a significant risk that the representation ... will be materially limited by a third person or by a personal interest of the lawyer.”) that could become an issue when representing a relative. The ABA comments to SCR 20:1.7 provide illustrations. For example, Comment [1] states that, “[l]oyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” Comment [8] notes that even with no direct adverseness, a conflict of interest exists if there is a significant risk that a “lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” Similarly, Comment [10] states that a “lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.”

Generally speaking, it is possible that representing a relative could be materially limited by a third person (such as another relative) or by the lawyer’s personal interests. ABA Comments [26] and [27] to Rule 20:1.7 address such nonlitigation factors: 

Nonlitigation Conflicts

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. … Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. …

[27] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved. 

Luckily, in my situation, the relative was far enough removed that none of these factors were of concern in my case.

III.          Filing the Petition

I told my relative that I could help him pro bono. I explained we needed to file a petition and obtain an order from the probate court in Milwaukee. I searched the WSCCA Class Code List and found a code we could use to electronically file the petition: 50100 - Probate-Unclassified.[6] When we went to file the petition, however, I found out that my client’s ex-wife opened an estate for their son the same day. So, our filing got rejected and we needed to file the petition within the estate action.

I explained to my client that I do not practice estate law and cannot assist him with the estate matter generally. My representation would be limited to obtaining an order granting him authority to control the disposition of the decedent’s remains. So that everyone would understand my role, I drafted and filed a Notice of Limited Appearance pursuant to Wis. Stat. § 802.045, which states, in relevant part:

Limited scope representation permitted — process.

(1)  Authorized. An attorney's role in an action may be limited to one or more individual proceedings or issues in an action if specifically so stated in a notice of limited appearance filed and served upon the parties prior to or simultaneous with the proceeding. Providing limited scope representation of a person under this section does not constitute a general appearance by the attorney for purposes of s. 801.14.

(2)  Notice of limited appearance. The notice of limited appearance shall contain the following information:

(a)  The name and the party designation of the client.

(b)  The specific proceedings or issues within the scope of the limited representation.

(c)   A statement that the attorney will file a notice of termination upon completion of services.

(d)  A statement that the attorney providing limited scope representation shall be served with all documents while providing limited scope representation.

(e)   Contact information for the client including current address and phone number. 

After I filed my Notice of Limited Appearance and a Petition Regarding Control of the Final Disposition of the Decedent’s Remains, the court held a status conference. During the status conference, opposing counsel objected to our Petition and asked for deadlines to submit briefs and affidavits. I was concerned about credibility issues and asked the court to schedule an evidentiary hearing instead, along with deadlines for the parties to submit witness lists and exhibits. The probate court agreed with me and scheduled the matter for an in-person evidentiary hearing and ordered the parties to file witness and exhibits at least two weeks before the hearing.

I spent several weeks gathering evidence from my client and others that we could use at the hearing to prove that the decedent and his mother were estranged at the time of his death, and that my client was the person most fit and appropriate to control the final disposition of his son’s remains. We lined up five witnesses who were going to testify at the hearing and filed 29 exhibits by the deadline. 

We were not surprised when the other side did not file any exhibits or a witness list. We felt confident in our position and were prepared to support it with plenty of evidence. In the end, the other side surrendered and agreed to cremation. In fairness, we offered to share the cremated remains with her, which she accepted.

IV.          Closing Thoughts

Once we reached a resolution, we notified the probate court and memorialized the agreement in a stipulation and order, which the court signed. We faxed the signed order to the funeral home and the decedent’s body was cremated the next day.

Now that my representation had ended, I needed to file and serve a Notice of Termination of Limited Appearance with the court pursuant to Wis. Stat. § 802.045(4), which I did. Upon filing and service, my representation was automatically terminated without further order of the court.[7] 

In the end, I felt proud being able to assist a family member during a very difficult and stressful time in his life, and delighted to learn that our skill set as insurance defense attorneys allowed me to comfortably venture into an unfamiliar area of law. 

Author Biographies:

Vincent (Vince) J. Scipior is a shareholder at Coyne, Schultz, Becker & Bauer, S.C. where he practices insurance defense, personal injury, professional liability, long-term care defense, and general litigation. He received his bachelor’s degree in 2007 from the University of Wisconsin-Madison and his J.D. in 2011 from the University of Wisconsin Law School. He is admitted to practice in all Wisconsin state and federal courts. He has tried cases in Adams, Columbia, Grant, Green, and Dane Counties. Vince is the current Journal Editor of the Wisconsin Civil Trial Journal and a member of the WDC Board of Directors. In addition to WDC, Vince is a member of the American Inns of Court James E. Doyle Chapter, the Dane County Bar Association, and the State Bar of Wisconsin. He was recognized as a 2017 Up and Coming Lawyer by the Wisconsin Law Journal and has been included in the Wisconsin Rising Stars List by Super Lawyers Magazine since 2016.

Andrew J. Lawton is an associate at Coyne, Schultz, Becker & Bauer, S.C. in Madison. He practices in civil litigation with a focus on insurance defense. He received his B.A. in 2015 from the University of Wisconsin-Eau Claire and his J.D. in 2018 from Marquette University Law School. Andrew is admitted to practice in Wisconsin.