Avoiding Probate in Wisconsin

Probate court proceedings (when a deceased person's assets are transferred to the people who inherit them) can be long, costly, and confusing. It's no wonder so many people take steps to spare their families the hassle. Different states, however, offer different ways to avoid probate. Here are your options in Wisconsin.

Living Trusts

In Wisconsin, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (similar to a will), naming someone to take over as trustee after your death (called a "successor trustee"). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.

Joint Ownership With Right of Survivorship

If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.

In Wisconsin, these forms of joint ownership are available:

• Joint tenancy. Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when people acquire real estate, vehicles, bank accounts, or other valuable property together. In Wisconsin, each owner, called a joint tenant, must own an equal share. (Wis. Stat. §§ 700.17, 700.19 (2024).)
• Survivorship marital property. Wisconsin is a "community property" state, though Wisconsin calls it a marital property state. This means that spouses generally own all property acquired during the marriage jointly unless they take steps to keep it separate. If spouses hold title to an asset as survivorship marital property, then it automatically passes to the survivor when one spouse dies. (Wis. Stat. § 766.60 (2024).)

There's another form of joint ownership called "tenancy in common." In a tenancy in common, a co-owner's share doesn't go to the other owners. Instead, a deceased person's share of the property passes to their heirs and generally will require probate. If the document used to transfer jointly owned property—such as a deed—doesn't clearly state that it's a joint tenancy, then the property will be considered a tenancy in common. (Wis. Stat. §§ 700.17, 700.18, 700.19 (2024).)

Payable-on-Death Designations for Bank Accounts

In Wisconsin, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings. (Wis. Stat. § 705.04 (2024).)

Transfer-on-Death Registration for Securities

Wisconsin lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account. (Wis. Stat. §§ 705.21 and following (2024).)

Transfer-on-Death Deeds for Real Estate

Wisconsin allows you to leave real estate with transfer-on-death deeds. These deeds are also called beneficiary deeds. You sign and record the deed now, but it doesn't take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death. (Wis. Stat. § 705.15 (2024).)

Transfer-on-Death Registration for Vehicles

Unlike many states, Wisconsin doesn't allow transfer-on-death registration of vehicles. However, in 2022, Wisconsin began allowing a nonprobate transfer process for "farm implements," meaning tractors and farm machines as well as their accessories and attachments. (Wis. Stat. § 705.18 (2024).)

Simplified Probate Procedures

Even if you don't do any planning to avoid probate, your estate might qualify for Wisconsin's simplified "small estate" probate procedures. For more details, see Probate Shortcuts in Wisconsin. For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).