Wisconsin is one of several states that allow an individual’s assets to transfer to his or her heirs without going through an often lengthy and expensive probate procedure. This process, known as “Transfer by Affidavit,” is a potential alternative-to-probate option when the assets in the estate equal $50,000 or less.

An heir, a trustee of the decedent’s revocable trust or a legal guardian of the decedent may initiate this process upon the death of the decedent. But certain legal obligations to the estate do exist even through this seemingly-informal process. Because this streamlined, informal approach may not be appropriate in all situations, an experienced estate and probate attorney can assist in determining when to use this process.

Did the Deceased Receive Public Assistance?

If the deceased or his/her spouse received any kind of public assistance, it is best to consult with an attorney to determine whether the estate must repay any of the funds before transferring assets to the heirs. The affidavit form lists all relevant public assistance programs. The difficulty here, however, comes down to determining whether the benefits the deceased (or spouse) received during his or her lifetime actually fall under the programs listed.

Also, if the State has a possible claim to reimbursement of funds from the estate, the individual wishing to file the Transfer by Affidavit must notify the Department of Health Services via certified mail of the individual’s intention to utilize the affidavit to transfer the decedent’s property. The State may then make a claim against the assets in the estate if it provided services to the decedent or his/her spouse at any time during their lifetimes.

Satisfying Legal Obligations in the Statute

The person who intends to file the affidavit must satisfy certain requirements as set forth under Wisconsin law. First, the person must apply the decedent’s property, in the proper order of legal priority, toward the expenses, claims and debts of the decedent. The balance of the property must be distributed according to the decedent’s will, trust, or other appropriate governing instrument. If the decedent left no such governing instrument, he or she died intestate. This requires the balance of the property to be distributed according to the laws of intestacy.

While it Isn’t Probate, it Isn’t Simple, Either

While the Transfer by Affidavit process intends to expedite the estate administration process in some cases, it is not always simple. Making a mistake, failing to file in a timely manner or not following the proper procedure can result in fewer assets to distribute. Worse, it could cause legal problems for the person acting on behalf of the estate.

If you believe your loved one’s estate may be able to avoid probate through the Transfer by Affidavit process, it is highly recommended that you first discuss all options and obligations with an estate administration attorney.