Wisconsin Statutes 867.03 – Transfer by affidavit
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Terms Used In Wisconsin Statutes 867.03
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Decedent: A deceased person.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Intestate: Dying without leaving a will.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Personal representative: means a person, however denominated, who is authorized to administer a decedent's estate. See Wisconsin Statutes 990.01
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- real property: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
- Trustee: A person or institution holding and administering property in trust.
(1c) Definition. In this section, “guardian” has the meaning given in s. 54.01 (10) or s. 880.01 (3), 2003 stats.
(1g) Generally. Except as provided in sub. (1h) and subject to subs. (1j) and (1p), when a decedent leaves property subject to administration in this state that does not exceed $50,000 in gross value, any heir of the decedent, trustee of a revocable trust created by the decedent, a person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death may collect any money due the decedent, receive the property of the decedent, and have any evidence of interest, obligation to, or right of the decedent transferred to the affiant if the heir, trustee, person named in the will to act as personal representative, or guardian provides to the person owing the money, having custody of the property, or acting as registrar or transfer agent of the evidences of interest, obligation to, or right proof of prior mailed notice under sub. (1m) if applicable and an affidavit showing all of the following:
(a) A description of and the value of the property to be transferred.
(b) The total value of the decedent’s property subject to administration in this state at the date of decedent’s death.
(c) Whether the decedent or the decedent’s spouse ever received services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), 2017 stats., or aid under s. 49.68, 49.683, 49.685, or s. 49.785.
(1h) Exception for real property. A person named in the will as personal representative may not receive any real property of the decedent by providing an affidavit under sub. (1g) or have any evidence of interest, obligation to, or right of the decedent in any real property of the decedent transferred to the person named in the will as personal representative by providing an affidavit under sub. (1g). This subsection does not apply to a person named in the will to act as personal representative if the person is also an heir of the decedent, a trustee of a revocable trust created by the decedent, or a person who was guardian of the decedent at the time of the decedent’s death.
(1j) Transfers to a person named to act as personal representative.
(a) Subject to par. (b), a person who receives an affidavit under sub. (1g) from a person named in the will to act as personal representative may not transfer any money due the decedent, the property of the decedent, or any evidence of interest, obligation to, or right of the decedent to the affiant until 30 days after the day on which the affidavit is received. This paragraph does not apply to an affidavit under sub. (1g) received from a person named in the will to act as personal representative if the person is also an heir of the decedent, a trustee of a revocable trust created by the decedent, or a person who was guardian of the decedent at the time of the decedent’s death.
(b) If, during the 30-day period under par. (a), the person who received the affidavit under par. (a) receives an affidavit under sub. (1g) for the same decedent from another person, the person who received the affidavits may not transfer any money due the decedent, the property of the decedent, or any evidence of interest, obligation to, or right of the decedent under this section unless ordered to do so by a court.
(c) Subsection (2) does not apply to a transfer if the transferor did not comply with this subsection.
(1m) Notice of affidavit.
(a) Whenever an heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death intends to transfer a decedent’s property by affidavit under sub. (1g) and the decedent or the decedent’s spouse ever received services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), 2017 stats., or aid under s. 49.68, 49.683, 49.685, or 49.785, the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death shall give notice to the department of health services of his or her intent. The notice shall include the information in the affidavit under sub. (1g) and the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death shall give the notice by certified mail, return receipt requested.
(b) An heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death who files an affidavit under sub. (1g) that states that the decedent or the decedent’s spouse received services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7), 2017 stats., or aid under s. 49.68, 49.683, 49.685, or 49.785 shall attach to the affidavit the proof of mail delivery of the notice required under par. (a) showing the delivery date.
(1p) Real property; notice. If the affidavit under sub. (1g) describes an interest in or lien on real property, at least 30 days before submitting the affidavit to an office of register of deeds under sub. (2m), the heir, trustee, or person who was a guardian of the decedent at the time of the decedent’s death shall provide to the decedent’s heirs a copy of the affidavit under sub. (1g) and notice that the heir, trustee, or person who was a guardian intends to record the affidavit under sub. (1g) in the office of the register of deeds in each county in this state in which the real property is located. The heir, trustee, or person who was a guardian of the decedent at the time of the decedent’s death shall give the notice required under this subsection by certified mail or by personal service.
(2) Release of liability of transferor. Except as provided in sub. (1j) and subject to sub. (1h), upon the transfer to the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death furnishing the affidavit with an attached proof of mail delivery if required under sub. (1m) (b), the transferor is released to the same extent as if the transfer had been made to the personal representative of the estate of the decedent.
(2g) Obligation of affiant.
(a) By accepting the decedent’s property under this section the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death assumes a duty to apply the property transferred for the payment of obligations according to priorities established under s. 859.25 and to distribute any balance to those persons designated in the appropriate governing instrument, as defined in s. 854.01, of the decedent or if there is no governing instrument, according to the rules of intestate succession under ch. 852, subject to par. (b). An heir, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death may publish a notice to creditors in the same manner and with the same effect as a trustee under s. 701.0508. This paragraph does not prohibit any appropriate person from requesting administration of the decedent’s estate under s. 856.07 or ch. 865.
(b) Property transferred under this section to or by an heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death is subject to the right of the department of health services to recover under s. 46.27 (7g), 2017 stats., or s. 49.496, 49.682, or 49.849 an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), an amount equal to aid under s. 49.68, 49.683, 49.685, or 49.785 that is recoverable under s. 49.682 (2) (a) or (am), or an amount equal to long-term community support services under s. 46.27, 2017 stats., that is recoverable under s. 46.27 (7g) (c) 1., 2017 stats., and that was paid on behalf of the decedent or the decedent’s spouse. Upon request, the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death shall provide to the department of health services information about any of the decedent’s property that the heir, trustee, person named in the will to act as personal representative, or person who was guardian of the decedent at the time of the decedent’s death has distributed and information about the persons to whom the property was distributed.
(2m) Recording of affidavit.
(a) If an affidavit under sub. (1g) describes an interest in or lien on real property, the heir, trustee, or person who was a guardian of the decedent at the time of the decedent’s death shall submit for recording in the office of the register of deeds in each county in this state in which the real property is located a certified copy or duplicate original of the affidavit under sub. (1g) with all of the following attached:
1. Proof of providing notice under sub. (1p), as described in s. 879.07 (1) or (2), at least 30 days before submitting the affidavit under sub. (1g) to the office of the register of deeds.
2. Proof of prior mailed notice under sub. (1m), if applicable.
(b) For purposes of a transfer under this section of an interest in or lien on real property, the recording of the affidavit copy or duplicate original constitutes the transfer to the affiant under sub. (1g) of the evidence of the interest in or lien on real property.
(c) If an interest in real property transferred under this section is acquired by a purchaser or lender in good faith, for value and without actual notice that the transfer was improper, the purchaser or lender takes title free of any claims of the decedent’s estate and incurs no personal liability to the estate, whether or not the transfer was proper. Purchasers and lenders have no duty to inquire whether a transfer was proper.
(3) Applicability. This section is additional to s. 109.03 (3) for payment of decedent’s wages by an employer directly to the decedent’s dependents.