Let’s say you’re an heir to your parent’s home. One of your parents passed away years ago, and the
surviving parent passed away recently. You’re looking to sell their home, which is still titled under one or
more of your parent’s names, and disburse the funds to yourself and the rest of the heirs. What are your
options to get this accomplished?
Probate Real Estate Transfers
The first thing to understand is that probate can be broken into two parts: informal and formal probate.
Informal probate is the administration of the decedent’s estate without the need for court supervision.
It is instead typically overseen by a probate registrar. For formal probate, however, requires court
supervision from a judge. Typically formal probate is used in one of three instances: (i) a valid will was
left by the decedent, the will assigns a personal representative (individuals tasked with the
administration of the estate), and the personal representative declines this role; (ii) if the decedent dies
without having a valid will (also known as “intestate”) and the heirs do not consent in writing to informal
administration; or (iii) an heir demands formal probate.
The personal representative would then have to obtain domiciliary letters from the court, which
confirms the authority for the personal representative to be able to sell the home. Title companies will
be looking for the signed domiciliary letters before the sale is complete. Zimmer & Rens LLC has
experience with ensuring the prompt delivery of your signed domiciliary letters, and then will represent
the estate until the administration has been fully disbursed and the courts can close the estate.
Non-Probate Real Estate Transfers
There are some instances, however, where the heir in the example provided in the first instance does
not have to utilize probate. There are a few options of non-probate transfers.
Wis. Stat. § 867.03(1g) allows for a non-probate transfer of real estate when the real estate does not
exceed $50,000 in gross value. If this type of transfer can be utilized, we use a Transfer by Affidavit that
be signed by any heir to 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. Simultaneously, all heirs
to the estate must be disclosed and the remaining heirs to the estate must consent to such transfer.
The other options for non-probate transfers include Transfer-On-Death (“TOD”) Deeds or through the
creation of a trust. These options must be initiated by the decedent while they are still alive and
competent, however.