Using A Small Estate Affidavit (Transfer Affidavit) To Avoid Probate In Wisconsin

In Wisconsin, Small Estate Affidavits are commonly referred to as Transfer Affidavits. If you are dealing with someone’s estate after they have passed, and there is $50,000 or less in probate assets, a transfer affidavit may be a good way to avoid probate, save time, and make the whole process easier for you.  Transfer Affidavits are governed by WI Stat 867.03 and you can find an example of the appropriate form from the link here. WI Transfer Affidavit Form.

In this article, we explain how to use a transfer affidavit, including:

• Can I use a transfer Affidavit?
• What assets count toward the $50,000 limit?

• Who do I need to provide notice to?
• How do I record the affidavit?
• What do I do with the assets once I have them?

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.

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.  

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