transfer on death Archives - Wynn at Law, LLC

Do I need to update my estate planning after moving to Wisconsin?

wynnatlaw — Thu, 16 Feb 2023 17:36:34 +0000

Whenever you experience a change in circumstances, such as moving states and acquiring new property, it is always a good idea to review your estate planning with an attorney to ensure that it up to date with current state laws and reflects your current wishes. If you have recently moved to Wisconsin, that is a great time to have your estate plan reviewed. The good news is that just because you moved, does not likely mean that you will have to start over with your estate planning, but there may be some important Wisconsin-based updates needed. A Wisconsin estate planning attorney can let you know how your current plan will operate in Wisconsin and let you know if there are any provisions specific to Wisconsin laws that were not accounted for properly.

Wills

If you have a will that was drafted in a different state before moving to Wisconsin, it will still be valid so long as it satisfies Wisconsin’s requirements of a valid will. These requirements include having the will in writing and having at least two disinterested witnesses at the time of signing.

In Wisconsin, your will may be changed through a codicil, which allows an individual to make amendments or changes at any time during their life. Some reasons that you may need a codicil to your will after moving to Wisconsin include, but are not limited to, changes to property, location of assets, location of beneficiaries, etc. For example, you may need to change the executor of your will if they live out of state. This is not only for practical reasons, in that the executor may have to handle matters in the decedent’s state, but also because Wisconsin law requires nonresidents to appoint an in-state resident to accept service of process and further, non-residency itself may be enough to disqualify an executor. See Wis Stat § 856.23.

Trusts

A living trust, also known as a revocable trust, is transferrable between states. However, it is important to speak with an attorney to update your trust to include any new assets and discuss whether moving your trust’s situs, aka its home, is advisable. On the other hand, an irrevocable trust’s situs may or may not be transferrable depending on the language of the trust. You should speak with an experienced estate planning attorney to understand the implications of having your trust’s situs in or out of state.

Similar to wills, it is advisable to have your trust’s situs as your state of residency. This is because unlike wills, which are attached to a person, trusts are entities governed by their respective state’s laws. Having a trust in a state other than your state of residency may require that your successor trustee hire an attorney in the state of the trust’s situs. Speaking with an attorney regarding your trust’s situs can help you understand other implications such as state fiduciary and inheritance taxes.

Transfer on Death Deed

A transfer on death deed allows property to be transferred to your beneficiaries without going through probate. If you have an existing transfer on death deed, it may need to be tweaked to reflect Wisconsin’s marital property laws. Moving to Wisconsin may make you to reconsider who is the beneficiary of your transfer on death deed. If it is the case that the beneficiary no longer seems appropriate, then you should speak with an attorney to revoke the deed and/or draft a new one.

Powers of Attorney

Your estate planning will typically include two kinds of powers of attorney (POA) – a financial power of attorney and a heath care power of attorney. The authority of someone granted to serve as a power of attorney is acknowledged in all states. However, moving is a perfect time to re-examine your agent selection. Wisconsin has adopted the Uniform Power of Attorney Act (UPOAA), along with 25 other states, which streamlines the laws governing POA’s. So, if your POA was created in a state that has not adopted the UPOAA, your POA could be challenged, and you should consult an attorney to clarify agent and grantor responsibilities.

Contact us today for a consultation at 262-725-0175 or our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has three office locations: Lake Geneva, Delavan, and Salem.

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Small Estate Transfer by Affidavit

wynnatlaw — Tue, 25 Oct 2022 18:43:43 +0000

What does it cover and how does it work?

Wisconsin’s Small Estate Affidavit statute allows estates under $50,000 to avoid probate and instead be transferred via affidavit. See Wis Stat. §867.03. It can be used by an heir, a trustee of a revocable trust, a person named in the decedent’s will, or a guardian after the passing of the decedent.

Why use a transfer by affidavit

A transfer by affidavit avoids the costly and time-consuming probate process and thus allows the estate’s assets to pass more quickly.

What assets apply to a transfer by affidavit?

A transfer by affidavit applies to any probate assets cumulatively worth under $50,000. Probate assets are any assets that do not have a specifically designated beneficiary or payable on death (POD) designation. Jointly owned items, such as bank accounts or vehicles with two names on the title, are considered non-probate assets because it is presumed that the property will transfer to the other joint owner upon the death of the other owner. Some examples of probate assets that could be transferred by affidavit include property titled solely in the decedents name such a vehicle, small parcels of hunting or fishing land, or bank accounts with no POD.

What is the process for a transfer by affidavit?

To transfer assets under Wisconsin’s Small Estate Affidavit statute, the heir, trustee of a revocable trust, beneficiary of the decedent’s will, or a guardian of the decedent, must complete the Transfer by Affidavit form. This form includes the name of the decedent’s estate, the total fair market value of the assets, and a description of the assets being transferred. If real estate is being transferred, then you must also complete an Affidavit of Heirship and the Affidavit of Service. If these additional forms are required, then you must present copies of them to the decedent’s heirs at least 30 days before filing the forms. Lastly, you must get the forms notarized and filed with the court. The property can then be claimed within 30 days of presenting the notarized affidavit.

Contact us today for a consultation at 262-725-0175 or our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has three office locations: Lake Geneva, Delavan, and Salem.

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Transfer on Death Deeds eliminate probate

wynnatlaw — Thu, 10 Aug 2017 11:30:00 +0000

When any of Wynn at Law, LLC’s clients own real property in Wisconsin, we look at a Transfer on Death Deed (commonly called a TOD Deed or a TODD) to see if it is a suitable fit for their estate plan. It can sometimes wipe out the need to go to probate court, which is a time and cost saver.

If you have $50,000 or more in probate assets, probate court comes into play when distributing assets. Probate assets are all assets NOT automatically transferred to another person when the owner passes. Life insurance proceeds, for example, skip probate because a beneficiary is identified. So, if assets can avoid probate, why not place a TODD on an asset like a vacation home to transfer it directly to beneficiaries, such as the kids?

The answer in some cases is that if you need to protect assets – for or from your children – you might not want to transfer them on your death. For the minor kids, you might want to transfer the asset to a trustee for their benefit until they’re older. In the case of adult children who may have creditor problems or a looming divorce, you might again want a trustee instead of transferring the property to them directly. Otherwise, a TODD making assets ‘unprobatable’ is an alternative for every Wynn at Law, LLC client because the property doesn’t need to be owned free-and-clear. You can have a mortgage, a second mortgage, even a line of credit against the property and still use the TODD to pass it on… and skip probate.

Let’s say you had a car and some bank assets totaling $49,995 and a $89,000 getaway cabin up north. All in, the assets would require probate, but if a TODD was placed on the cabin, the cabin passes to your heirs (they still get the debt if it was mortgaged, by the way) and the rest of the estate would avoid probate because it’s under the $50,000 limit.

Your accountant, or your beneficiary’s, will point out that there may be tax benefits to this strategy as well, because the transfer isn’t considered a ‘gift’ subject to gift tax. The TODD may also reduce or eliminate capital gains taxes if and when the property is sold by the beneficiary.

Even if you have the Transfer on Death Deed, you can still choose to sell a property while you’re living: It’s yours! The TODD designation does not give the beneficiary ‘ownership’ of the property while you’re alive… if the document is drafted properly. Call an attorney.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

Photo by Ekaterina Kondratova, used with permission.

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