Is a Transfer by Affidavit Right for Me?

The State of Wisconsin allows its residents to utilize a Transfer by Affidavit to avoid probate when the decedent’s estate does not exceed $50,000 in gross value. This “small estate affidavit” is an alternative to using a court process for smaller estates and allows an entitled person to collect, receive, and have the decedent’s interest in property transferred from the person, institution, or entity possessing those assets.

Why is the Wisconsin Transfer by Affidavit Important? 

Far too often, Wisconsin residents are denied access to a decedent’s bank account, life insurance policy, or other important assets, and are told the only way to get access is through probate. Unfortunately, a full probate is not only costly and time-consuming, but it can also be an incredibly stressful process. A Transfer by Affidavit can eliminate this process.     

Who Can Take Advantage of this Form?

The trustee of a revocable trust created by the decedent, a guardian of the decedent at the time of the decedent’s death, an heir of the decedent, or a person named in the decedent’s will to act as personal representative, in the case of only non-real property, can take advantage of this form. To determine who is best suited to utilize this power is often dependent on the facts of the case and whether there was any prior estate planning put in place. 

What Property May be Transferred Using the Transfer by Affidavit? 

All property which would otherwise be subject to a probate administration, including an interest in real and non-real property, may be transferred using the Affidavit. However, there is no bright line test one can use to categorize probate property, and the task of correctly classifying property can be more complicated than one would think. 

Some examples of property which may be transferred using the Affidavit include interests in:

·         Real property (an interest in real estate);

·         Bank accounts;

·         Promissory notes;

·         Certificated or uncertificated securities;

·         Digital property; and

·         Property that would otherwise be distributed to the decedent’s estate via beneficiary designation.

Some examples of assets that are usually considered non-probate assets, and therefore would not use the Affidavit to transfer interests, include interests in:

·         Jointly owned bank accounts;

·         Assets held in trust;

·         Jointly-titled cars;

·         Jointly-owned investment accounts;

·         Bank accounts with a Payable on Death beneficiary; and

·         Life insurance policies naming beneficiaries that are not “the estate.” 

Obligations of Affiant: 

Just because a trustee, guardian, or heir signed the Affidavit does not mean that they are entitled to keep the decedent’s assets or money all for themselves. Certain obligations arise once the Affidavit is signed. 

For example, the individual who signed the Affidavit is obligated to distribute any balance to the correct beneficiaries. Instances may also arise where the balance is needed to pay off the debts of the decedent to their creditors. Additionally, if a person received certain benefits from governmental programs, such as Medicaid or Medical Assistance, there are additional notice requirements that must be followed. 

More Questions? 

Because complications can arise when dealing with probate assets, the Transfer by Affidavit is not a substitute for legal advice. The attorneys at Moertl, Wilkins & Campbell have experience in these complications and understand how they might impact one’s estate planning. If you are interested in learning more about a Transfer by Affidavit, or if you would like to create or update an estate plan, please contact us.