Wisconsin Transfer on Death Deed Form

What Is a Wisconsin Transfer-on-Death (TOD) Deed?

A transfer-on-death deed—also called TOD deed or beneficiary deed—is a written instrument declaring that title to real estate automatically transfers to a named beneficiary upon the current owner’s death. A property owner can attach a TOD designation to Wisconsin real estate by either including the designation in a deed that conveys title to the owner or by executing and recording a later document that includes the TOD designation.¹ This article refers to either method as a Wisconsin TOD deed unless one or the other method is specified.

The Wisconsin Legislature expressly authorizes “nonprobate transfer of real [estate] on death” within Section 705.15 of the Wisconsin Probate Code. Along with the TOD-deed-specific rules within Section 705.15, Wisconsin also has a series of rules generally governing TOD transfers of any permissible asset type.²

What Is the Purpose of a Wisconsin TOD Deed?

Wisconsin property owners typically use TOD deeds to bypass the formal probate process. Probate is often cumbersome, costly, and time-consuming. Keeping significant assets like real estate out of an individual’s probate estate reduces the burden and expense of estate administration. Another advantage is that—in most cases—beneficiaries receive official title more quickly with a TOD deed than if real estate passes through the formal probate process.

A Wisconsin TOD beneficiary has three options for officially confirming the transfer of title from the deceased owner to the beneficiary:³

1. Petition the relevant county court to issue a certificate confirming the transfer;⁴
2. Ask the estate’s personal representative to file with the probate registrar a verified statement describing the transfer;⁵ or
3. Request confirmation of the transfer in the probate judge’s final judgment relating to the deceased owner’s estate.⁶

Whichever manner of confirmation is used, the beneficiary should record the document confirming the transfer in the register of deeds of the county where the property is situated.

What Types of Property Can Be Transferred Using a Wisconsin TOD Deed?

Wisconsin’s TOD deed statute allows property owners to use TOD designations to transfer most types of real estate interests.⁷ The statute specifically authorizes TOD deeds relating to

• Real estate solely owned by one individual;
• Fractional interests in real estate owned by more than one owner as tenants in common;
• One or both spouses’ interest(s) in real estate owned as marital property; and
• Real estate two or more individuals own as joint tenants.⁸

Though Wisconsin’s TOD deed law limits TOD deeds to interests in real estate, Wisconsin residents can use TOD designations authorized under other statutes with numerous other assets. Assets transferable in Wisconsin by a transfer-on-death or payable-on-death designation include insurance policies, bonds, promissory notes, bank accounts, retirement plans, securities, and brokerage accounts.⁹ Wisconsin does not permit TOD designations on motor vehicle titles.

What Is the Effect of a Wisconsin TOD Deed While the Owner Is Alive?

A Wisconsin TOD deed has no effect on a property owner’s interest in the real estate during the owner’s life.¹⁰ This principle holds even if a TOD deed states that it limits the owner’s title.¹¹ The owner retains until death the right to sell, transfer, or mortgage the property—or to amend or revoke the TOD designation—with or without the beneficiary’s consent.¹²

To amend or revoke a Wisconsin TOD deed, the property owner need only execute and record a new deed either naming a different beneficiary or revoking the prior designation.¹³ A revocation or amendment takes effect upon recording.¹⁴

A TOD designation in favor of a property owner’s spouse becomes void under Wisconsin law if the couple divorce after execution of the TOD deed.¹⁵ A TOD deed in favor of an owner’s spouse remains operative if a court order, property settlement agreement, or the TOD deed itself expressly states that the TOD designation survives divorce—or if the two spouses remarry.¹⁶

What Is the Effect of a Wisconsin TOD Deed on the Death of an Owner?

When a property owner who has recorded a Wisconsin TOD deed dies, the property interest automatically passes to the TOD beneficiary, with no need for probate.¹⁷ The beneficiary receives the property subject to any existing liens or mortgages.¹⁸ If a mortgage, mechanic’s lien, judgment, or other lien is attached to the property when the owner dies, it survives the transfer to the TOD beneficiary. Other assets in a deceased owner’s estate may sometimes be applied to pay off an existing lien. When that occurs, the TOD beneficiary may have to contribute to the estate the amounts paid before taking title to the property.¹⁹

Wisconsin has adopted the slayer rule, so a Wisconsin TOD designation is void if the TOD beneficiary is responsible for the unlawful and intentional death of the property owner.²⁰

Can a Wisconsin TOD Deed Leave Property to Multiple Beneficiaries?

Yes, Wisconsin’s TOD deed statute lets property owners name more than one beneficiary in a TOD deed.²¹ Wisconsin’s general rule is that multiple beneficiaries receive equal shares in a deceased owner’s interest, but a property owner can specify different shares within a TOD deed.²²

When a TOD deed names multiple beneficiaries and a transfer to one beneficiary fails, the remaining beneficiaries receive the failed transfer proportionally according to their relative interests.²³

Can Joint Owners Sign a Wisconsin TOD Deed?

Yes. Wisconsin law allows TOD designations for real estate interests solely owned by an individual or co-owned by more than one owner.²⁴

The practical effect of a TOD designation on a jointly-owned property varies according to the form of co-ownership. Co-tenancy—also called tenancy in common—is the default form of joint ownership in Wisconsin.²⁵ Co-tenants hold separate, fractional interests and can separately transfer or devise their interests by will.²⁶ When a co-tenant designates a TOD beneficiary for a fractional interest in the property, the interest automatically transfers to the beneficiary upon the co-tenant’s death.²⁷

Wisconsin law also authorizes co-ownership of real estate in joint tenancy—a co-ownership form defined by the right of survivorship.²⁸ A joint tenant’s ownership interest vests in the surviving joint tenant upon death.²⁹ Real estate owned by joint tenants only transfers to a designated TOD beneficiary upon the death of the last surviving joint tenant.³⁰

Wisconsin’s marital property system—comparable to community property in some other states—can also affect TOD deeds. Wisconsin law assumes that each spouse owns an equal share in the couple’s marital property—which includes most assets obtained by either spouse during the marriage.³¹ Spouses can devise by will their one-half interests in marital property. Alternatively, a couple can elect to own their marital property with a right of survivorship—in which case it is called survivorship marital property.³²

When Wisconsin real estate is survivorship marital property, a TOD designation works similarly to a joint tenancy.³³

A spouse’s one-half interest in marital property not designated survivorship marital property transfers to a TOD beneficiary upon the death of a spouse who recorded a TOD deed.³⁴ A TOD designation for real estate owned as marital property must include both spouses’ signatures.³⁵

Wisconsin law permits a surviving joint owner with a right of survivorship to disclaim the survivorship interest upon the other owner’s death.³⁶ The disclaimed interest becomes part of the deceased person’s probate estate unless the deceased person made other arrangements—such as a TOD deed.³⁷

What Happens if the Beneficiary Named in a Wisconsin TOD Deed Dies Before the Owner?

Wisconsin’s general rule is that a TOD beneficiary must survive the property owner by at least 120 hours to receive an interest passed under a TOD deed.³⁸ If a beneficiary dies before the property owner—and if none of the exceptions described below apply—the TOD designation fails (or lapses), and the real estate becomes part of the deceased owner’s probate estate.³⁹

Bypassing probate is a major goal of TOD deeds, so a lapsed designation is usually a bad result. Property owners should therefore consider one or more of the following strategies for avoiding lapse.

Strategies to Avoid a Lapsed TOD Designation

There are a few ways to avoid lapse: naming a closely related beneficiary, naming a contingent beneficiary, or naming multiple beneficiaries. These strategies can be used in conjunction with one another or separately.

Name a Closely Related Beneficiary. A beneficiary does not have to survive the property owner to take under a TOD deed if the beneficiary is a close relative of the owner.⁴⁰ Specifically, if a predeceased beneficiary is the owner’s grandparent or a descendant of the owner’s grandparent—i.e., a parent, sibling, uncle, cousin, child, or grandchild of the owner—then the real estate passes to the beneficiary’s surviving issue.⁴¹ Stepchildren are included in the class of closely related beneficiaries whose issue can receive a TOD interest.⁴² Wisconsin treats adopted children the same as birth children in most cases.⁴³

A predeceased TOD beneficiary’s issue—that is, children or grandchildren—must themselves survive the owner to receive the interest passing under the TOD deed. The TOD designation lapses If a deceased beneficiary leaves no children, and the real estate interest becomes part of the owner’s probate estate.⁴⁴ An owner may specify within a TOD deed that the TOD designation does not descend to the beneficiary’s issue—in which case the designation lapses if the named beneficiary does not survive the owner.⁴⁵

Name a Contingent Beneficiary. A property owner can also avoid a lapsed TOD designation by naming a contingent TOD beneficiary.⁴⁶ A contingent TOD beneficiary—who the owner can name in the original TOD deed or a subsequently recorded instrument—receives the property interest upon the owner’s death if the primary TOD beneficiary is no longer living.⁴⁷

Even if a TOD deed’s primary beneficiary is a close relative, a contingent-beneficiary designation can be a wise move. An owner who relies on the TOD interest descending to the beneficiary’s issue loses some control over the property’s ultimate destination. If a TOD deed names a close relative as the primary beneficiary and identifies a contingent beneficiary, the contingent beneficiary designation takes precedence if the primary beneficiary does not survive the property owner.⁴⁸

Name Multiple Beneficiaries. As noted above, an owner can avoid a lapsed transfer resulting from a beneficiary’s death by naming multiple beneficiaries. If one of several beneficiaries predeceases the owner, the real estate passes to surviving beneficiaries.⁴⁹

Must the Owner Notify the Beneficiaries of the Wisconsin TOD Deed?

Wisconsin’s TOD statute does not require actual notice of a TOD deed to the deed’s beneficiary. Recordation of a TOD deed in the county land records serves as constructive notice of the TOD designation.⁵⁰

A TOD beneficiary has the right to disclaim—or refuse to accept—any interest in property that would otherwise transfer under a Wisconsin TOD deed.⁵¹ Co-owners of a property that is jointly owned with a right of survivorship—such as joint tenants or a spouse with survivorship marital property—have a similar right to disclaim the survivorship right upon the other owner’s death.⁵² A person disclaiming an interest in real estate must record the disclaimer with the county register of deeds.⁵³.

Can a Wisconsin TOD Deed Be Used When the Property Is Mortgaged?

Yes.  Due-on-sale provisions—which mortgage agreements often include—generally prevent transfer of mortgaged real estate without the mortgage holder’s consent.  However, federal law exempts TOD deeds from due-on-sale provisions when the beneficiary is related to the borrower. The Garn-St. Germain Depository Institutions Act of 1982⁵⁴ prevents a lender from accelerating a mortgage loan—or otherwise executing an option under a due-on-sale clause—in response to “a transfer to a relative resulting from the death of a borrower.”⁵⁵]

A transfer of Wisconsin real estate under a TOD deed does not extinguish existing liens on the property.⁵⁶ A TOD beneficiary takes title subject to any outstanding mortgage unless the mortgage debt is otherwise satisfied.

Must a Wisconsin TOD Deed Be Recorded?

Yes. A Wisconsin TOD deed is ineffective unless recorded in the register of deeds for the county in which the property is located.⁵⁷ The register of deeds must receive the deed and any applicable recording fees before the owner’s death.⁵⁸ If more than one owner holds title to the real estate, the TOD deed must be recorded before the death of the last surviving owner.⁵⁹

A Wisconsin TOD deed that a property owner executes but does not record before death is ineffective, and the property will likely become part of the owner’s probate estate.

Can a Wisconsin TOD Deed be Signed By an Agent Under a Power of Attorney?

The capacity required for a property owner to execute a valid Wisconsin TOD deed is the same as the capacity a Wisconsin testator must have to create a valid will.⁶⁰ Wisconsin’s capacity standard for wills is that the testator must be at least 18 years old and “of sound mind.”⁶¹

A property owner who lacks sufficient mental capacity cannot create a valid TOD deed through a power of attorney. Wisconsin courts have held that a court’s appointment of a guardian—by itself—is not irrefutable proof of insufficient capacity.⁶²

What are the Requirements for a Wisconsin TOD Deed?

A Wisconsin TOD deed must include:

• The name of the property owner or owners whose interest a TOD deed will transfer;
• The TOD beneficiary’s name; and
• A statement that the transfer only becomes effective upon the owner’s death.⁶³

If real estate qualifies as marital property, a TOD deed must include the signature of both spouses.⁶⁴

A TOD designation can evidence the intended TOD transfer by including the words transfer on death, pay on death, TOD, or POD between the owner’s and beneficiary’s names.⁶⁵ A Wisconsin real estate owner may include a TOD designation in either the original deed through which the owner acquires title or a separate instrument the owner executes and records later.⁶⁶ In either case, the TOD deed must be recorded with the relevant county’s register of deeds.⁶⁷

1. Wis. Stat. §705.15(2)(b).
2. See Chapter 854: Transfers at Death—General Rules (Wis. Stat. §§854.01, et. seq.).
3. Wis. Stat. §705.15(5).
4. Wis. Stat. §867.046(1m).
5. Wis. Stat. §865.201.
6. Wis. Stat. §863.27.
7. Wis. Stat. §705.15(1m).
8. Wis. Stat. §705.15(1m)(a) – (e).
9. Wis. Stat. §§705.10, 705.21.
10. Wis. Stat. §705.15(3).
11. Wis. Stat. §705.15(3).
12. Wis. Stat. §705.15(3).
13. Wis. Stat. §705.15(3).
14. Wis. Stat. §705.15(3).
15. Wis. Stat. §854.15(3).
16. Wis. Stat. §854.15(5).
17. Wis. Stat. §705.15(4).
18. Wis. Stat. §705.15(4).
19. Wis. Stat. §854.05.
20. Wis. Stat. §854.14.
21. See Wis. Stat. §705.15(4).
22. See Wis. Stat. §§705.15(2)(b); 705.15(4); 854.04(1), (2), and (6).
23. Wis. Stat. §854.07.
24. Wis. Stat. §705.15(1m).
25. Wis. Stat. §700.18.
26. Wis. Stat. §700.20.
27. Wis. Stat. §705.15(1m)(b).
28. Wis. Stat. §700.19.
29. Wis. Stat. §700.17(2).
30. Wis. Stat. §705.15(4).
31. Wis. Stat. §766.31.
32. Wis. Stat. §766.60(5)
33. Wis. Stat. §705.15(1m)(c); Wis. Stat. §705.15(3); Wis. Stat. §766.60(5)(a).
34. Wis. Stat. §705.15(1m)(c).
35. Wis. Stat. §705.15(2)(4).
36. Wis. Stat. §854.13(8) and (9).
37. Wis. Stat. §854.13(8) and (9).
38. Wis. Stat. §705.15(4); Wis. Stat. §854.03(1).
39. Wis. Stat. §§705.15(4); 854.07(3).
40. Wis. Stat. §705.15(2)(b); Wis. Stat. §854.06(3).
41. Wis. Stat. §705.15(2)(b); Wis. Stat. §854.06(3).
42. Wis. Stat. §854.06(2)(b).
43. Wis. Stat. §854.20(1).
44. Wis. Stat. §705.15(4).
45. Wis. Stat. §854.06(4).
46. Wis. Stat. §705.15(2)(b).
47. Wis. Stat. §705.15(2)(b).
48. Wis. Stat. §854.06(4)(a)(2).
49. Wis. Stat. §854.07.
50. Wis. Stat. §705.15(2)(c).
51. Wis. Stat. §854.13(2)(a)(2).
52. Wis. Stat. §854.13(2)(b) and (c).
53. Wis. Stat. §854.13(5)(e).
54. 12 USC 1701j-3(d).
55. 12 USC 1701j-3(d)(5).
56. Wis. Stat. §§705.14(4); 854.05(2).
57. Wis. Stat. §705.15(2)(c).
58. Wis. Stat. §705.15(2)(c).
59. Wis. Stat. §705.15(2)(c).
60. Wis. Stat. §705.15(7).
61. Wis. Stat. §853.01.
62. In Matter of Estate of Sorensen, 87 Wis. 2d 339, 274 N.W.2d 694 (1979).
63. Wis. Stat. §705.15(2)(a).
64. Wis. Stat. §705.15(2)(a)(4).
65. Wis. Stat.§705.15(2)(b).
66. Wis. Stat. §705.15(2)(c).
67. Wis. Stat. §705.15(2)(c).