Detailed Answer
When someone dies in Wisconsin, their assets transfer through either non-probate mechanisms or through probate. Real property can pass automatically at death if it holds a transfer-on-death deed or if the decedent owned it jointly with rights of survivorship. Otherwise, the property is part of the probate estate and requires court supervision to transfer title under a valid will.
Non-Probate Transfers of Real Property
- Joint Tenancy with Right of Survivorship. If two or more people hold title as joint tenants, the survivor(s) automatically inherit the decedent’s share without probate. See Wis. Stat. § 701.25 (Joint Tenancy).
- Transfer-on-Death Deed (TOD Deed). Wisconsin law allows property owners to prepare a deed that names a beneficiary who takes title upon death. This deed bypasses probate if recorded properly during the owner’s lifetime. Wis. Stat. § 705.09 (TOD Instruments).
Probate Estate and Wills
Property held solely in the decedent’s name or without a valid non-probate designation becomes part of the probate estate. To transfer these assets under a will, one must open a probate proceeding in circuit court.
- Probate Requirement. Probate verifies the will’s authenticity, appoints a personal representative, and supervises asset distribution. Wis. Stat. § 861.01 (Probate of Will).
- Personal Representative. The court appoints an executor or administrator who gathers assets, pays debts, and distributes property per the will or state law if no will exists. See Wis. Stat. § 855.01 (Appointment of Personal Representative).
- Costs and Timeline. Formal probate can take 6–12 months and involves court fees, publication notices, and bond requirements. Small estates may qualify for simplified administration if the total does not exceed statutory limits. Wis. Stat. § 859.16 (Small Estate Settlement).
Why Probate the Will?
Even if real property passes automatically to a joint owner or TOD beneficiary, other assets—such as bank accounts, personal belongings, and mortgage payoffs—may still require probate to clear title and settle debts. Probate ensures all creditors have notice and that the decedent’s wishes are honored under court supervision.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Helpful Hints
- Review property titles to identify non-probate interests.
- Consider a transfer-on-death deed for real property.
- Keep beneficiary designations on financial accounts up to date.
- Check if your estate qualifies for simplified or small estate procedures.
- Consult an attorney to guide you through probate or non-probate transfers.