Do I need Probate for a small estate?
Our firm routinely guides families through the probate process after the death of a loved one. At the initial meeting, a common question is whether there is any way to avoid a full probate and just transfer the assets according to Mom or Dad’s wishes. In some cases, we do have that option.
If the value of all property that would be subject to probate is less than $50,000, a Transfer by Affidavit can be used (note: some states call it a “small estate affidavit,” which I think is a more helpful name).
A Transfer by Affidavit can be signed by any heir, a trustee of the deceased individual’s revocable trust (if any), the deceased individual’s guardian, or the person nominated in the deceased individual's will to be the personal representative. As with any affidavit, the person signing the affidavit is signing under oath. They are swearing an oath to pay the deceased individual’s final debts and expenses and then distribute any remaining assets according to the “appropriate governing instrument,” which is typically the deceased individual's Will. If there is no governing instrument, then the laws of intestate succession are followed.
The assets to be transferred are all listed on the Affidavit, including real estate. If there is real estate to be transferred, the heirs need to be sent the Affidavit at least 30 days prior to the recording of the Affidavit with the Register of Deeds. In addition, the value of the real estate is its gross value, so no deduction for any mortgages or liens against the property is allowed to try and get the value of the assets to be less than $50,000.
Lastly, if the deceased individual received any government benefits that are subject to Wisconsin’s Estate Recovery, the Affidavit must be sent by certified mail to the Department of Health Services. Proof of this mailing must be attached to the Affidavit.
Other than the time for certified mail, or the 30-day notice related to real estate, the Transfer by Affidavit process can move forward as quickly as possible, making this a much faster alternative to full probate.
If you have questions regarding probate or use of a Transfer by Affidavit, contact us to schedule a consultation today.
