Wisconsin Termination of Decedent's Interest, Form HT-110

Introduction

Key Things to Know

1. 1

   One form covers both statutes. The Wisconsin Register of Deeds Association publishes Termination of Decedent's Interest as form HT-110 and TOD-110, approved 5 October 2017, and its own instructions say it is to be used pursuant to Sections 867.045 and 867.046 of the Wisconsin Statutes to provide public notice that a person holding one of the listed interests died and that interest is terminated. Note the vocabulary: Wisconsin calls the document an application, not an affidavit.

2. 2

   No death certificate is required. Neither section asks for one, and neither do the official instructions. What goes in instead is a copy of the property tax bill for the year before the death or the most recent one, a legal description imprinted on or attached to the application, and a copy of the document that created the interest. Order certified death certificates anyway, because the bank and the insurer will want them.

3. 3

   The register of deeds can take your oath at the counter, which is unusual. Wis. Stat. 867.045(2) and 867.046(3) each provide that the register of deeds, or another person authorized under s. 706.06 or ch. 140, completes a statement at the foot of the application declaring that the applicant appeared before them and verified the information under oath. Naming the register first means the swearing need not be arranged with a notary beforehand. The instructions still say signatures must be notarized, so call the office and ask which they prefer.

4. 4

   Recording is what terminates the interest, and the statutes say so twice. Under 867.045(4) the application upon recording is presumed to be evidence of the facts recited and shall terminate the joint tenancy or life estate, all with the same force and effect as if issued by the court exercising probate jurisdiction for the county of the decedent's domicile. Under 867.046(5) it constitutes prima facie evidence and constitutes the termination of the property interest, with the same force and effect. One express limit sits in 867.045(4): the application is not evidence of payment of any death tax that may be due.

5. 5

   Who may sign depends on which interest terminated. Under 867.045, for a joint tenant, life tenant, land contract vendor or mortgagee, any person interested in the property may sign. Under 867.046 it is specific: a transfer under s. 705.10(1) must be signed by the beneficiary of that transfer, survivorship marital property by the decedent's spouse, an interest passing under s. 705.15 by the designated transfer on death beneficiary, and a marital property agreement interest by a beneficiary of the agreement.

6. 6

   There is a 90-day clock, and it widens the filing rather than closing it. Wis. Stat. 867.046(2m) provides that if the personal representative, the decedent's spouse, a beneficiary of a marital property agreement or a transfer on death beneficiary has not commenced proceedings to confirm an interest under that section or s. 863.27 or 865.201 within 90 days after the death, any interested person may petition or apply. Nothing is forfeited at 90 days. The door simply opens to others.

7. 7

   Thirty dollars, grounded in the fee statute rather than in the form. Wis. Stat. 59.43(2)(ag) sets, for recording any document entitled to be recorded with the register of deeds, $30. The official instructions quote the same figure but date it to 2017, so the statute is the better authority. Expect separate costs for copies: 59.43(2)(b)2. prices them at $2 for the first page plus $1 for each additional page, and another $1 to certify a copy.

Wisconsin Requirements for Affidavit of Death

• The Right Statute: 867.045 or 867.046

  Wisconsin splits this into two separately titled sections and the choice drives everything else. Section 867.045, Administrative joint tenancy or life estate termination for certain property, reaches an interest as a joint tenant or life tenant in real property, a vendor's interest in a land contract, and a mortgagee's interest in a mortgage. Section 867.046, Summary confirmation of interest in property, reaches survivorship marital property, property passing under a marital property agreement, a transfer on death beneficiary designation, and transfers under s. 705.10(1) and s. 705.18(2), and also reaches savings or checking accounts and securities. One physical form serves both, which is why it carries two numbers, HT-110 and TOD-110.

• The Decedent's Name, Residence, Post-Office Address and Date of Death

  Section 867.046(2) asks for the name, residence and post-office address of the decedent and the date of the decedent's death; 867.045(1) asks for the name and address of the decedent and of the surviving joint tenant or remainder beneficiary, the date of death, and the applicant's interest in the property. Residence and post-office address are separate asks, so give both. Wisconsin does not require a death certificate to back the date, which makes accuracy here the only check on it.

• A Copy of the Document That Created the Interest

  The attachment that does the real work. Section 867.045(1)(k) requires, in the case of a joint tenancy or life estate, a copy of the deed that creates the interest. Section 867.046 splits the same idea three ways: (2)(j) a copy of the deed creating a joint tenancy, life estate or transfer on death beneficiary designation; (2)(k) in the case of a transfer under s. 705.10(1), except as described in (i) or (j), a copy of the document described in s. 705.10(1); and (2)(L) in the case of a transfer under s. 705.18(2), except as described in (j), a copy of the document described in s. 705.18(2). Where the transfer runs on an unrecorded document, which the instructions say may include a trust signed by the decedent, attach the first page, the pages showing how the decedent intended the property to pass, and the signature pages.

• A Property Tax Bill, and a Legal Description Imprinted or Attached

  Both statutes carry the same unusual exhibit, at 867.045(1)(j) and 867.046(2)(i): for real property, a copy of the property tax bill for the year preceding the year of the decedent's death or a copy of the most recent property tax bill, and a legal description of the property as provided under s. 59.43(2s)(a), which shall be imprinted on or attached to the application. The register of deeds then records the bill. There is a release valve in the same sentence, since the required recording of the tax bill may be waived by agreement between the register of deeds and the county real property lister, and the official instructions make the bill conditional on what your county wants. Exclude from the legal description any portion of the property conveyed before the death.

• The Right Signer for Your Interest

  Wide under one statute and narrow under the other. Under 867.045 any person interested in the property may obtain the evidence and sign. Under 867.046 the official instructions fix the signer by interest: an interest passing under s. 705.10(1) must be signed by the beneficiary of that transfer, survivorship marital property by the decedent's spouse, an interest passing under s. 705.15 by a person designated as a transfer on death beneficiary under that section, and an interest passing under a marital property agreement by a beneficiary of the agreement. Section 867.046(2m) then opens it up: where the personal representative, the spouse, a marital property agreement beneficiary or a transfer on death beneficiary has not commenced proceedings within 90 days after the death, any interested person may petition or apply.

• An Oath, Which the Register of Deeds Itself Can Administer

  Two steps. First, 867.045(1) requires the person providing the application to sign it and verify, under oath, the correctness of the information provided, and the official instructions put it as signatures must be notarized. Second, 867.045(2) and 867.046(3) require the register of deeds, or another person authorized under s. 706.06 or ch. 140, to complete a statement at the foot of the application declaring that the applicant appeared before them and verified the information under oath. Naming the register of deeds first is the distinctive part: the swearing can happen at the recording counter. Where the applicant is not an individual, 867.046(3) lets a representative of the applicant appear. No witnesses are required by either section.

• The Right Office, and a Separate Form per County

  For real property, the register of deeds of the county in which the real property is located, and the official instructions are explicit that where the decedent held parcels in different counties a separate form must be recorded with the register of deeds of each county. For non-real property only, record with the register of deeds of the county where the decedent last resided, which is a different test entirely. Budget $30 under Wis. Stat. 59.43(2)(ag), which sets the fee for recording any document entitled to be recorded with the register of deeds; copies run $2 for the first page plus $1 per additional page under 59.43(2)(b)2., with another $1 to certify one. Confirm the total with the county, because we did not read the exceptions that section carries.

• A Transfer Receipt, the Exemption to Cite, and What Recording Achieves

  For real property the instructions require a completed Wisconsin Electronic Real Estate Transfer Receipt, and note it is not required where the interest is a vendor's interest in a land contract or a mortgagee's interest in a mortgage. The exemption has to be named rather than assumed, because Wis. Stat. 59.43(1c)(c) makes the register of deeds indicate the real estate transfer fee paid or, if the conveyance is not subject to a fee, the reason for the exemption, citing the relevant subsection of s. 77.25; the instructions point to s. 77.25(11) for a transfer by will, descent or survivorship and s. 77.25(11m) for a nonprobate transfer on death under s. 705.15. What you get for filing is substantial: under 867.045(4) the recorded application is presumed to be evidence of the facts recited and shall terminate the joint tenancy or life estate with the same force and effect as if issued by the probate court, and 867.046(5) is the parallel. One express limit in 867.045(4): it is not evidence of payment of any death tax, which stays the survivor's obligation.