Written by attorney Nick Passe

Wisconsin Transfer on Death deed ("TOD deed") guide

Wisconsin Statutes Section 705.15 recognizes the validity of what are commonly referred to as "transfer on death" ("TOD") deeds. These deeds are a tool which, along with other mechanisms in an estate planner's "toolbox", can help clients avoid the expense of probate and the uncertainty of giving up control of the property (which is to some extent what happens when an owner deeds away a remainder interest while keeping a life estate in property.) What's more, the last survivor of a married couple or of a group of owners which own the property together still has control over the property without respect to the wishes of the designated TOD beneficiary. The current owner may terminate the TOD designation or change it to be another person at will.

However, transfer on death deeds are not a panacea. Retaining ownership of the property means that if the owner wants to try to qualify for medical assistance or some other means-tested social welfare program in the future, the property will be considered an asset of the current owner more than if the current owner only had a life estate in the property. Additionally, the current owner's interest in the property is not shielded from creditors as well as it might be if the current owner only held a life estate in the property. Then again, equity in property held by the current owner can be borrowed against to benefit the current owner.

When a property is encumbered by a mortgage or some other lien, always be wary of the possibility of triggering a "due on sale" or similar clause.

Please note this explanation is completely ignoring considerations of liens, the form of the deeds, authentication requirements, recording requirements, the legality transferring ownership to make oneself eligible, applicable lookback periods for determining entitlement program eligibility and the interaction of other law with this statute. Always talk with an attorney before making any important legal decisions!

Please also realize that there are many nuances in the statute which are not addressed here and each person's circumstances are unique and there may be many other laws or regulations that may impact your ability to achieve whatever goal(s) you have. You should always seek legal advice before making any imporant legal decision. While I hope you have gained some knowledge by reading this guide, this guide is not legal advice and no attorney/client privilege has been created by the reading of the guide.

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