Wisconsin Small Estate Affidavit

Introduction

Key Things to Know

1. 1

   A small estate affidavit is a sworn statement that lets a person entitled to a decedent's property collect it without full probate, and in Wisconsin it is called a transfer by affidavit under Wis. Stat. Section 867.03.

2. 2

   The transfer by affidavit is available only when the decedent leaves property subject to administration in Wisconsin that does not exceed $50,000 in gross value (Wis. Stat. Section 867.03).

3. 3

   Wisconsin sets no general waiting period after the death, so the affidavit can usually be used without waiting a set number of days (Wis. Stat. Section 867.03).

4. 4

   One exception applies: if the affidavit comes from a person named in the will as personal representative who is not also an heir, trustee, or guardian, the holder may not transfer the property until 30 days after receiving the affidavit (Wis. Stat. Section 867.03).

5. 5

   The affidavit may be signed by an heir of the decedent, a trustee of a revocable trust the decedent created, a person named in the will as personal representative, or the person who was the decedent's guardian at death (Wis. Stat. Section 867.03).

6. 6

   The affidavit can reach real property, but before recording it with the register of deeds the affiant must give the decedent's heirs at least 30 days notice (Wis. Stat. Section 867.03).

7. 7

   Prior mailed notice may be required before using the affidavit, including notice for recovery of public assistance under Wis. Stat. Section 867.03.

Wisconsin Requirements for Small Estate Affidavit

• Transfer by Affidavit

  In Wisconsin the small estate affidavit is called a transfer by affidavit under Wis. Stat. Section 867.03. The affiant gives the affidavit to the holder of the asset, who then pays or delivers the property; there is no court appointment for a qualifying estate.

• $50,000 Gross Value Limit

  The transfer by affidavit is available only when the decedent leaves property subject to administration in Wisconsin that does not exceed $50,000 in gross value (Wis. Stat. Section 867.03). The affidavit states the total value of that property.

• No General Waiting Period

  Wisconsin sets no general waiting period after the death, so the affidavit can usually be used right away (Wis. Stat. Section 867.03). The exception is a 30-day hold when the affidavit comes from a will-named personal representative who is not also an heir, trustee, or guardian.

• Who May Sign

  The affidavit may be signed by an heir of the decedent, a trustee of a revocable trust the decedent created, a person named in the will as personal representative, or the person who was the decedent's guardian at death (Wis. Stat. Section 867.03).

• Can Reach Real Property

  The affidavit can describe an interest in or lien on real property and be recorded with the register of deeds, unlike the personal-property-only affidavits in many states (Wis. Stat. Section 867.03).

• 30-Day Notice Before Recording Real Property

  If the affidavit describes an interest in real property, the affiant must give the decedent's heirs a copy and notice, by certified mail or personal service, at least 30 days before submitting it to the register of deeds (Wis. Stat. Section 867.03).

• Prior Mailed Notice May Be Required

  The affiant must provide proof of any prior mailed notice required under Wis. Stat. Section 867.03, including notice related to recovery of public assistance, before collecting on the affidavit.

• Signed Under Oath, Duty to Apply Property

  The transfer by affidavit is sworn, and the affiant must apply the collected property to the decedent's debts and distributions correctly (Wis. Stat. Section 867.03). Do not sign if the facts are uncertain.