In this article...

Watch Our Video
Kevin O'Flaherty

Looking to avoid the probate process for a small estate in Wisconsin? Utilizing a small estate affidavit transfer affidavit, or using a small estate affidavit transfer affidavit to avoid probate in Wisconsin, is a strategic way to bypass the drawn-out and often costly probate court proceedings. Our guide details the straightforward steps to leverage this option for estates valued below $50,000, enabling a swift and cost-effective transfer to your loved one’s heirs.

Can I use a transfer affidavit?

For you to be able to use a transfer affidavit, a few conditions need to be met.

  • You must be an heir of the decedent, trustee of a trust created by the decedent, or a guardian of the decedent at the time of decedent’s death.
  • The probate assets remaining in the estate must be $50,000 or less.

What assets count toward the $50,000 limit?

Probate assets. Probate assets are assets that do not automatically go to someone else on death, or do not have a beneficiary assigned by a will, trust, or other instrument. Some examples of non-probate assets might include:

  • Jointly owned or titled real property, vehicles, or bank accounts  
  • Payable on Death (POD) or Transfer on Death (TOD) accounts
  • Assets disposed of in a will or held in a trust
  • Beneficiary designations  

In many cases, there are mostly non-probate assets (that have a known destination), and the remaining probate assets are less than $50,000, making a transfer affidavit a good option to avoid probate.  

Who do I need to provide notice to?

In the transfer by affidavit form you will have to confirm whether or not the decedent received state benefits such as Medicaid or other assistance, as the state may require repayment from the estate.  

If you assume control of assets by transfer affidavit, you will still be responsible for any obligations to provide notice to creditors that would have otherwise existed.  

Especially in cases involving real estate to be transferred, the person assuming control of assets by transfer affidavit (affiant) may need to provide actual notice to all other heirs by certified mail or personal service at least 30 days before recording the transfer affidavit and conveying property to third parties. If the affidavit has not provided this notice, he or she may be required to execute an “Affidavit of Heirship” to determine all the heirs of the estate, and have them identified, and join in on such a conveyance.  

How do I record the affidavit?

If the non-probate assets include an interest in real estate, it must be recorded in the register of deeds in each Wisconsin county that the real estate is located in.  

The transfer affidavit must be signed and notarized. It can be used to obtain property from third parties.

Required Forms

The preparation of a Transfer Affidavit necessitates the involvement of several forms. These include the Transfer by Affidavit, Affidavit of Heirship, and Affidavit of Service. When real estate is part of the estate, an Affidavit of Heirship is required to identify all heirs and may necessitate a clear explanation of their relationship to the decedent.

Moreover, for real estate transfers using a transfer affidavit, an Affidavit of Service is also needed in addition to the Affidavit of Heirship. The Affiant must provide proof of their status as an heir, trustee, guardian, or nominated personal representative of the decedent on the Transfer by Affidavit form (PR-1831).

What do I do with the assets once I have them?

Once you have completed the transfer affidavit and have control of the estates non-probate assets, you are still responsible for any obligations that would have come up had you gone through probate, including paying creditors, or distributing assets according to an existing estate plan, or based on Wisconsin intestacy or other statutes. It is not up to you to do whatever you want.  

Keep in mind that a transfer affidavit is best when infighting between heirs is not likely to be an issue. If there are multiple heirs and they don’t agree, a challenge to the affidavit could land you back in probate court and defeat the purpose of the affidavit altogether.  

Potential Pitfalls

Despite the Transfer Affidavit process being generally straightforward and advantageous, potential pitfalls should not be overlooked. One such pitfall could arise if there is likely to be infighting between heirs. In such cases, disputes could lead to probate court involvement, thus negating the benefits of the affidavit.

Therefore, it’s crucial to consider the dynamics among the heirs and assess whether the Transfer Affidavit is the best option for managing the estate.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

FREE Probate & Estate AdministrationE-Book

Get my FREE E-Book

Similar Articles

Learn about Law