- Kirsten Hildebrand
Transfer by Affidavit
Updated: Feb 4, 2021
One of the primary goals in estate planning is avoiding the probate process. This can be accomplished in a number of ways, principally through establishing a trust or designating beneficiary designations on accounts. While avoiding probate altogether is desirable for a number of reasons, including most notably the cost savings, the real key is to have probate assets totaling less than $50,000. The first step, therefore, is to determine what counts towards probate assets. In such cases where an estate does not exceed $50,000 in probate assets, an heir can use a "Transfer by Affidavit" form to transfer assets instead of going through the probate court process. Many states have a similar procedure for such "small estate".
The Transfer by Affidavit, authorized by Wisconsin Statute Section 867.03, is a simple, two-page form with biographical questions and information on the particular assets being transferred. A legal guardian, heir, nominated personal representative, or trustee may use this procedure. By completing the form and accepting probate assets, the individual promises to assume the duty to apply the property for the payment of obligations according to statutory probate priorities. For example, creditors may still need to be paid using the decedent's assets. The transferring entity or individual is released from liability associated with transferring the assets. It is relatively straight forward, though there are different considerations which must be taken into account to ensure that the process is completed successfully.
For example, a completed Transfer by Affidavit must be provided to Department of Health Services Estate Recovery Program in the event that the decedent:
Received Medical Assistance/Medicaid
Received Family Care and/or Partnership benefits through a Managed Care Organization
Received benefits from the Community Options Program
Received Benefits from the Wisconsin Chronic Disease Program
Was a patient or inmate of a state or county hospital or institution, or responsible for any person owing an obligation to the state or county.
The State can then recover money paid through these programs by way of the assets in the affidavit. Similarly, if the assets involve real estate, then the Transfer by Affidavit must be recorded with the Register of Deeds for the county in which the property is located. In other situations, legal notice must be provided to other heirs and beneficiaries. The rules also vary based on whether or not the person completing the form was named as a Personal Representative in a decedent's will. In the event the decedent had a will, the assets are still distributed to beneficiaries in accordance with the terms of the will.
The Transfer by Affidavit provides individuals with a straight-forward, cost-effective, and reasonably simple way to transfer assets without the need for court involvement. It avoids the time and expense involved with the probate process and is thus far superior in many ways. The experienced attorneys at Hildebrand Law Firm LLC can assist you with this process and can discuss other strategies for avoiding probate.
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