Attorney Thomas B. Burton answers the following question:
"How To Transfer Family Cabin Without A Will?"
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Hello, I'm Attorney Thomas Burton.
I'm an estate planning and asset protection attorney and welcome back to our popular Question and Answer Series.
Today's question has to do with real estate and inheritance and the writer asks the following - "Tenants in common transfer without a will, the deed to our family cabin in Wisconsin lists my mom and her deceased brother as tenants in common. He passed away nine years ago without a will. How do we get his name off the deed?"
This is a very good question and one that I see come up a lot with family vacation homes, cabins and such in Wisconsin. When a tenant in common passes, their interest in the property passes to that person's estate. So if your mom's brother passed away with no will, he died what we call 'Intestate' and therefore his property would pass according to the Wisconsin law's statutes of intestacy which are found in chapter 852 of the Wisconsin statute.
Generally, the property would pass to his nearest living relatives, if there's a surviving spouse, to the surviving spouse and then to his children if any and then to his next nearest living relatives. So it goes out from there to your next of kin. You can find the full intestate succession statutes in chapter 852, how it works. I don't know your mom's brother, family situation to tell you exactly who it goes to, but you will know and you can analyze that.
In terms of getting the property out of the deceased brother's name, I would recommend sitting down with a qualified real estate and estate planning attorney. It's possible that an heir of your mother's brother can file paperwork to open a probate estate on behalf of the brother and take title to property on behalf of the estate and then either through the estate figure out who is inheriting the property
It says 'without a will', I'm assuming he had no will when you're saying without a will or if you're just trying to do it without using the will but either way, if he had a will, the will will govern. If he doesn't have a will then you have to look to the statutes on intestacy.
If the interest in the property is less than $50,000, there may be a simplified probate process you can pursue, so talk with your attorney about that but if the interest in the cabin is more than that amount, then it's likely we're going to need to open a probate to transfer his interest in the cabin to his heirs.
So either way, without a will or trust in place, we're going to have to follow the rules on intestate succession and that's why for family cabins, I often recommend putting the cabin in a trust. So you can spell out exactly what will happen to the cabin if someone dies, who should receive the interest and you can avoid probate completely on all of the real estate and property because in Wisconsin, the limit to trigger a probate is $50,000. If you have $50,000 or more in probate assets, you must go through the full probate process whereas if you're below that limit, there's a process but it's more simplified. So a lot of real estate cabins are more than this value and that's why a trust is a great way to transfer this to the next generation or to the heirs or whoever you want.
So I hope this is helpful to you. If it has been helpful, please consider giving this video a 'Like', so that others can see and benefit from this information as well.
Thanks for your question and for watching and we'll see you next time.
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