Wisconsin law, for title research

Wisconsin transfer on death deed: how a TOD designation is made, recorded and revoked, and how the interest is confirmed

Every rule below is quoted from the Wisconsin Statutes or another official source, linked and checked on the date shown. General information, not legal advice.

Does Wisconsin have a transfer on death deed?

Yes. Section 705.15 lets an owner designate a TOD beneficiary on a document, and the listed interests in real property may then be transferred without probate on the death of the sole owner or the last to die of multiple owners. The interests are sole ownership, a tenant in common share, a spouse's marital property interest, survivorship marital property, and joint tenancy.

The designation can sit on the original document that passes the property to the owner, or may be made later by the sole owner or all then surviving owners, by executing and recording another document.

What must the Wisconsin document contain?

Three items, plus a fourth for marital property. It must give the name of the owner or owners, the name of the designated beneficiary, and a statement that the transfer is effective only upon the death of the owner or owners. When the interest is owned by a spouse as marital property, both spouses who have an interest in it must sign, and section 766.31(2) presumes all property of spouses to be marital property.

The words transfer on death or pay on death, or the abbreviation TOD or POD, placed after the owner's name and before the beneficiary's name, may be used to make the designation. Primary beneficiaries may be named, and contingent beneficiaries may be named to take if a primary beneficiary does not survive the sole owner or the last to die.

When must it be submitted for recording?

It must be submitted before the death. Subsection (2)(c) makes a designation ineffective unless the document, and any fees required to record it, are submitted for recording to the register of deeds office of the county where the land is located before the death of the sole owner or the last to die of multiple owners.

How is a Wisconsin designation revoked?

Only through an instrument the statute lists: a later complying document that revokes expressly or by inconsistency, an instrument of revocation that expressly revokes, or an inter vivos deed that expressly revokes. Any of them may reach the recorded document or any part of it. It must be acknowledged by the owner after the original was acknowledged, and submitted for recording in the county before the death.

With several owners, one owner's revocation reaches only that owner's interest. A designation on joint tenancy or survivorship marital property is revoked only by all of the living joint tenants or spouses. The revocation subsection does not limit the effect of a sale or other inter vivos transfer of the property.

What happens at the owner's death?

Ownership passes, subject to any lien or encumbrance against the land, to the beneficiaries who survive all owners and to any predeceased beneficiary's issue who would take under section 854.06(3). If no one in either group survives, the interest goes to the estate of the sole owner or the last surviving owner.

Section 705.15(6) applies chapter 854 to these transfers, and two of its rules shape who takes. The substitute gift in section 854.06 covers a transfer to a grandparent of the decedent, a grandparent's issue, or a stepchild. It does not apply if the instrument says a transfer to a predeceased beneficiary lapses, and contingent transferees named in the instrument take ahead of it. Section 854.03(1) treats a person as having predeceased if it is not established that the person survived by at least 120 hours, with stated exceptions.

Until that death the designation does not affect ownership, whatever the document says. Designating or revoking takes the same capacity as making or revoking a will.

How does the beneficiary confirm title?

Section 705.15(5) points to three routes: a final judgment under section 863.27, a verified statement the personal representative files under section 865.201, and section 867.046. Under 867.046(2) the beneficiary files an application with the register of deeds giving the decedent's and applicant's names and addresses and the date of death, signed and verified under oath, with a property tax bill, a legal description, and a copy of the deed that created the designation.

Once recorded, the application is prima facie evidence of the facts recited and constitutes the termination of the decedent's interest. Section 867.046(6) protects a purchaser or lender who acquires an interest transferred under that section from the petitioner in good faith, for value and without actual notice that the transfer was improper: the buyer takes title free of claims of the decedent's estate, incurs no personal liability to it, and has no duty to inquire.

Can a spouse or the state reach a Wisconsin TOD transfer?

The statutes point to two possible claims, neither naming TOD deeds directly. Under section 861.02, a surviving spouse may elect up to 50 percent of the augmented deferred marital property estate, and that estate includes probate and nonprobate transfers of the decedent's deferred marital property. Section 861.17 lets a court in an equitable proceeding reach a property arrangement made in fraud of the surviving spouse's rights.

Estate recovery is the other. Section 49.849(1)(d) defines property of a decedent to include assets transferred to a survivor, heir or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust or any other arrangement, excluding an irrevocable trust. Under section 49.849(4)(a), the department has a lien on qualifying real property when the section's conditions are met, and it may record that lien with the register of deeds. Section 49.849 does not name a TOD deed. Our reading that "any other arrangement" could include one is for a Wisconsin attorney to confirm.

What does a divorce change?

Section 854.15(3)(a) revokes any revocable disposition of property the decedent made to a former spouse, or to a relative of the former spouse, in a governing instrument, and section 854.01(2) lists an instrument under chapter 705 among governing instruments. Three definitions narrow that. A relative of the former spouse is someone who, after the divorce, is not related to the decedent by blood, adoption or marriage, so a shared child falls outside it. Revocable means the decedent was alone empowered to change or revoke. And the rule covers only instruments the decedent executed before the divorce.

Section 854.15(3)(e) also severs joint tenancies with survivorship and survivorship marital property held by the decedent and former spouse, turning the interests into tenancies in common. The exceptions in section 854.15(5) include express terms of the instrument, a court order or a property division contract, a nullified divorce, remarriage to the former spouse before the death, and a contrary intent of the person who executed the instrument, which extrinsic evidence may show. Whether a particular designation survived is for a Wisconsin attorney.

What a title search checks after a Wisconsin owner dies

A probate title search reads the decedent's property by name and the vesting at death, looks in the county records for a document naming a beneficiary and any later revoking instrument or inter vivos deed, and looks for a recorded application, statement or judgment confirming the interest. It also notes the 120 day period for claims to recover the land and the liens to pay that it finds.

The Wisconsin transfer on death rules on this page, with their sources

Sources: Wisconsin Statutes 705.15; Wisconsin Statutes 867.046; Wisconsin Statutes 854.15; Wisconsin Statutes 854.01; Wisconsin Statutes 854.06; Wisconsin Statutes 854.03; Wisconsin Statutes 766.31; Wisconsin Statutes 861.02; Wisconsin Statutes 861.17; Wisconsin Statutes 49.849; Wisconsin Statutes 863.27; Wisconsin Statutes 865.201. Each row links the section it summarizes.

Questions people ask

More on how Wisconsin property law shapes a title search: title research in Wisconsin.