January 3, 2019
Wisconsin has adopted a “small estate affidavit” statute to allow residents with a small probate estate to avoid both formal and informal court-administered probate. The State of Wisconsin allows this through the use of a Wisconsin Transfer by Affidavit. Wisconsin has implemented a non-probate procedure that does not require probate court involvement for use when a deceased Wisconsin resident’s probate assets total $50,000 or less.
Wisconsin’s small estate Transfer by Affidavit law is set forth at Wis. Stats. 867.03.
Give Yourself Peace of Mind
A properly crafted estate plan can give you peace of mind, knowing your assets and family are well protected. Our estate planning lawyers will help you get there.
A Simplified Wisconsin Procedure for Small Probate Assets
A full probate is time-consuming and can be costly. We spend a lot of time working with clients crafting estate plans to avoid probate. Where a small estate (under $50,000 in total assets) is likely to be subjected to probate, we can sometimes utilize a Transfer by Affidavit to avoid probate.
On enough occasions, Wisconsin residents contact us after having been told by a bank or insurance company to start a probate to get access to a bank account, life insurance policy, or other assets of a loved one. As experienced estate planning attorneys, our first step is to determine which assets are subject to probate. We then ascertain whether those probate assets total more than $50,000. If the probate assets are less than that amount, we implement a Transfer by Affidavit to avoid the court probate process and costs.
What is a Probate Asset?
Figuring out which assets are probate assets can be a complicated task. The nature of the assets, the family situation, and prior estate planning all factor in.*
There are a wide range of assets owned by a deceased person that are not typically considered probate assets. The following are some examples of assets owned by a deceased person that are normally considered non-probate assets.
- Jointly-owned bank accounts – unless the clear intent of the joint account is that it would not be retained by the surviving joint owner;
- Life insurance that names beneficiaries other than “estates” or “my estate”;
- Bank accounts naming Payable on Death (POD) beneficiaries;
- Investment accounts naming a Transfer on Death (TOD) beneficiary;
- Investment accounts that name a joint owner;
- Transfer on Death Deeds that name a beneficiary on real estate;
- Assets held in a Revocable Trust or Irrevocable Trust;
- Married couples that provided for non-probate disposition to their revocable trust or others through a non-probate marital property agreement; and
- A jointly-titled vehicle such as a car.
As a reminder, non-probate assets do not count against the Transfer by Affidavit $50,000 probate asset limit.
After we determine the list and value of probate assets, we work with our clients on the most appropriate action to transfer assets.
Probate Assets Over $50K Do Not Always Require Probate
There are a number of other items that we review and consider when determining what assets may require probate. For example, certain assets such as U.S. Bonds have specialized rules that may allow for non-probate transfers even if they exceed Wisconsin’s $50,000 Transfer by Affidavit limit.
Additionally, with a married couple’s Wisconsin trust, we look for a non-probate marital property document that could also eliminate probate. (For more, see our article on Marital Property Agreement: Funding a Revocable Trust Without Probate.)
Who Can Take Advantage of Wisconsin’s Small Estate Affidavit?
A guardian, an heir, or the trustee of a revocable trust created by the deceased person can all utilize the Transfer by Affidavit technique to avoid probate in appropriate cases.
The question of who is best to utilize the power to transfer assets is dependent on each case and the estate plan that may have been in place.
Normally, a trustee of the decedent’s revocable trust will utilize a Transfer by Affidavit to transfer assets into the trust when the probate assets left outside of trust at death do not exceed $50,000. However, to avoid multi-step transfers to a trust beneficiary, we sometimes can work with the trustee and beneficiaries to make the process as streamlined and efficient as possible by allowing an heir to receive certain assets directly.
The Estate Plan or Intestate Laws Must Still be Followed
The Wisconsin Transfer by Affidavit form does not allow a trustee, heir, or guardian to simply take or keep the decedent’s money or assets. The estate plan, such as a trust or last will and testament or the laws of intestacy if there is not a will, must still be followed.
The small estate affidavit process allows a person or trustee to obtain and transfer assets without court involvement, but the law of paying creditors and distributing proceeds to the correct beneficiaries must still be followed.
Moreover, if a person received certain governmental programs such as Medical Assistance for long term care, notice requirements to the State of Wisconsin must be strictly followed.
Estate Planning and Transfer by Affidavit
When meeting with a new client, as experienced attorneys, we are also thinking about probate and avoiding probate.
Depending upon the family and assets, a trust is often the most comprehensive method to avoid probate. We may use a Transfer by Affidavit if most assets can easily be made non-probate, as and where appropriate. This approach can deal with certain probate assets post death, avoiding the cost of an trust estate plan with beneficiary designations and transfer on death deeds.
An Example of a Transfer by Affidavit
Consider the following hypothetical circumstances for how we might implement a Transfer by Affidavit for our clients:
A client with one adult competent child, a house, a bank account, and a car – It may be possible to avoid probate by naming a POD beneficiary on the bank account, name the child as a Transfer on Death beneficiary on the house, and then the child, after the parents death, can transfer the car to him or herself using the Transfer by Affidavit.
Alternatively, we may leave certain probate assets outside of a revocable trust knowing that the trustee will use the Transfer by Affidavit form to avoid probate and transfer a car to the trust after death. Although a trust is often more comprehensive and can better deal with the unexpected death of the child, sometimes a non-trust estate plan can keep the estate planning process simple and less expensive for the client.
We Can Help
As a firm, Wokwicz Law Offices has completed thousands of estate plans for generations of Wisconsin residents. When we meet with clients, we discuss options and various techniques for estate planning. We work to get to the best way to meet those clients’ goals. We always consider the Transfer by Affidavit when crafting an estate plan or determining how to proceed efficiently after a death.
If you’ve been told that probate is necessary for a loved one by a bank or life insurance company, we invite you to get in touch with our office. We’re here and ready to help.
* In fact, there are a number of complexities that can arise in determining what assets are probate assets. A detailed discussion of those complexities is beyond the scope of this article. If you’d like to discuss how these complexities might effect your estate plan, please call us directly on 262-658-2181.