Small Estate Affidavit -

Asked about 5 years ago - Grafton, WI

My mother passed away and listed my sister and myself as excecutors. We did not probate the will, as there was not estate.
There is a $15,000 annunity with NO beneficiary listed. We have been advised that we must get a Small Estate Affid. Is this something we can do for ourselves or do we need to retain an attorney?

Attorney answers (2)

  1. Robert E. Holtz

    Contributor Level 4

    Answered . In Wisconsin, as long as the solely-owned assets which would otherwise be subject to probate administration total $50,000 or less, a Small Estate Affidavit can be used by an "heir" to transfer assets to such heir at the death of a parent. Given that it sounds like your father predeceased your mother, then any living child would be an heir. Once the heir receives such assets, however, he or she has an obligation to dispose of same in accordance with the Will. Thus, you would likely be required to share same with all of your siblings equally if the Will so prescribes. Since any heir can sign the Small Estate Affidavit, you may want to check with the insurance company to determine if both siblings can sign and submit same so that the annuity is distributed equally to each sibling. I was thinking that there could be income tax consequences if one heir receives the annuity distribution and then tries to transfer part of same to the other siblings. You should therefore determine from the insurance company if any part of the annuity proceeds will be taxable. This should be considered before the actual distribution and subsequent transfers are finalized. It also sounds like you have confirmed with the insurance company that when no beneficiary is named, the annuity proceeds are payable to the "estate" (or ultimately to the heirsof the estate per the Affidavit method described above) instead of being distributed to the surviving spouse or , if none, to the surviving children as some annuity contracts provide. Atty. Rapkin is correct with the reference to the website http://wicourts.gov/formdisplay/PR-1831.doc?for... for purposes of obtaining the Affidavit form. The only other potential problem could arise if your mother received Medical Assistance. In such case, if the Small Estate Affidavit is used, there would be a duty to notify the State of Wisconsin with regard to giving the State an opportunity to make a claim against the proceeds for the amount of the Medical Assistance payments which it may have advanced for the benefit of the decedent. If this is the case or if you are still confused about the tax aspects of the annuity distribution, you may want to consult with an attorney.

  2. Stephanie G. Rapkin

    Contributor Level 8

    Answered . You can do it yourself. The form is online as are the instructions. The web site is http://wicourts.gov/forms1/circuit.htm.

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