Probate
Inheriting the family home
Let’s say you’re an heir to your parents’ 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:
- 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;
- 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
- An heir demands formal probate.
Domiciliary letters
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.
Transfer by affidavit
If this type of transfer can be utilized, we use a Transfer by Affidavit that can 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.
Transfer-on-death (“TOD”) deeds
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.
Real estate practice areas
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