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Questions Answered by Thomas B. Burton
1 Answer | Asked in Real Estate Law for Wisconsin on
Q: If 3 people are on a deed for a house in WI joint tenancy and one person dies. The person who died

has debt. Can creditors come after his portion of house?

Thomas B. Burton
Thomas B. Burton answered on May 3, 2021

If the creditor's lien or mortgage was recorded prior to the joint tenant's death, the property will pass subject to the lien. There is a Termination of Decedent's Interest Form you can file with the Register of Deeds to remove the joint tenant's name from the title to the... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: Wisc home deed lists husband and wife grantee what happens upon death of spouse? What should it say to pass to survivor?

No mortgage

Thomas B. Burton
Thomas B. Burton answered on Apr 26, 2021

Hello, if you want the property to pass to the surviving spouse non-probate upon the death of the first spouse, you can title the property as "John Smith and Jane Smith, husband and wife as survivorship marital property" for example. "survivorship marital property" is the key... Read more »

1 Answer | Asked in Probate for Wisconsin on
Q: As the executor and beneficiary of my late fathers will. That has already been through probate.

Do I need to show a copy of the will to the bank?

Thomas B. Burton
Thomas B. Burton answered on Mar 12, 2021

I would need to know more details to answer this question correctly, but generally, you are required to file the Will with the Probate Court in the County where the decedent died within 30 days of your knowledge of their death. This is required to begin opening a probate action in that County. If... Read more »

1 Answer | Asked in Estate Planning and Probate for Wisconsin on
Q: What are the steps to file Mom's will with Wisconsin probate? It is a pour over will.
Thomas B. Burton
Thomas B. Burton answered on Mar 9, 2021

Hello, if it is a Pour Over Will it sounds like it was designed to be used with a trust. So first I would examine all of the assets and see if there are any that have not already been titled in the name of the trust. All assets that were placed inside the trust do not need to go through probate, as... Read more »

1 Answer | Asked in Probate for Wisconsin on
Q: My question is we are dealing with the Medicaid estate recovery.

My mom just passed away and we most likely will not be going through probate as most of her assets are either pod or joint with one of her children and the balance left will be under $50,000. So, do we need to get info on the Medicaid estate recovery since my dad used some title 19 funds. How do we... Read more »

Thomas B. Burton
Thomas B. Burton answered on Jan 19, 2021

If you use the Transfer by Affidavit, used for small estates with total probate assets less than $50,000 there is a requirement to send a copy to the DHS Estate Recovery Program by Certified Mail before you can transfer any assets under the Affidavit. Generally, the Estate Recovery Program will... Read more »

1 Answer | Asked in Real Estate Law for Wisconsin on
Q: Can legally transferred land be just taken back?

My husband and I were given land (paperwork was signed by both parties for the ownership transfer). The prior owner is upset about something and thinks he can call the county and just take the land back. This land had been in our name for years now and is also included in the assessment of our... Read more »

Thomas B. Burton
Thomas B. Burton answered on Dec 11, 2020

If the land was legally transferred by deed, and your name is now on the title to the property, the previous owner cannot take it back unless you sign a deed granting the land back to them either by gift or by sale. The only other way I can think of for the previous owner to get the property back... Read more »

1 Answer | Asked in Probate for Wisconsin on
Q: My sister-in laws boyfriend left her some money in his will. She passed away prior to him.

The will stipulates that my sister-in-laws daughter (my niece) was to receive these funds when she turns 30 if my sister-in-law were to pass away.

Probate just settled in WI last month and my Niece has now passed away also. with no alternatives listed in the will would my niece's 2... Read more »

Thomas B. Burton
Thomas B. Burton answered on Dec 9, 2020

You will have to examine what the Will says happens if your niece passes away before she reaches age 30. It may say that the gift "lapses" which would mean it goes away if the person dies, or it may say that then the gift gets added back to the corpus of the estate and distributed to the... Read more »

1 Answer | Asked in Elder Law for Wisconsin on
Q: What does "Responsible Party" mean legally on an assisted living application? Are an elder's children's assets at risk?

Our Wisconsin resident Mom's husband just died and we children are about to place her in assisted living.

She has assets to pay for her care for three years or so and can partial pay (a small pension and social security and veteran's benefits) after that. But if she lives long... Read more »

Thomas B. Burton
Thomas B. Burton answered on Dec 1, 2020

The meaning of the term "Responsible Party" should be defined by the terms of the contract the Assisted Living Facility is asking you to sign. If it is not defined in the contract, I recommend asking them for the definition before signing and I would be very cautious about signing this... Read more »

1 Answer | Asked in Estate Planning, Consumer Law and Probate for Wisconsin on
Q: Mom passed away June 2020 with only $300 in her checking & a car loan.

She had a car loan that was upside down. It has been repossesed already. The bank is saying we (me & my 2 brothers) will owe the difference of what they get at auction & what she owed. None of us were on the loan with her, it was solely hers. Do we actually have to pay that? Keep in mind... Read more »

Thomas B. Burton
Thomas B. Burton answered on Nov 18, 2020

The good news about death, is that the debts of the decedent die with them. I am sorry to hear about the loss of your mother. Any debts she owed at her death would be owed by her estate. So if she only had $300 total to her name and that is the total amount in her estate, this is the limit of what... Read more »

1 Answer | Asked in Land Use & Zoning and Real Estate Law for Wisconsin on
Q: Does a title company have to notify the buyer and seller of a house of any encumbrances they discover prior to closing?

After closing on a home, the county contacted me saying the property lines for the home I just bought are incorrect. After speaking with the county, the title company contacted the county about this issue. However, the title never notified myself or the seller about this issue prior to closing.

Thomas B. Burton
Thomas B. Burton answered on Nov 13, 2020

I would carefully examine your title insurance policy on the home to see if the issue was discovered during the title search and discuss this issue with a real estate litigation attorney in your area. The title company should have run a title search before issuing the title insurance. If the issue... Read more »

1 Answer | Asked in Real Estate Law for Wisconsin on
Q: My brother is providing me with $40,000 down payment to purchase a primary residence.

The amount is intended to be a gift. Would he need to pay taxes on the amount over $15,000 or could this be claimed under the lifetime exemption? If it’s taxable, would agreeing to repay the amount upon sale of the property turn it from a gift to a loan?

Thomas B. Burton
Thomas B. Burton answered on Nov 11, 2020

Currently you can gift up to $15,000 per person per year, without filing a federal gift tax return. Therefore, your proposed gift of $40,000 from your brother would be over this amount. He could gift you $15,000 this year and $15,000 in 2021 without filing a gift tax return, or if he is married, he... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: Should I allow my dad to add me to the deed of our family home? What potential liability or risk is involved?

There is still a mortgage and home equity loan on the home along with other debt my dad owes and my husband and I are looking at selling a buying a new home in the next few years.

Thomas B. Burton
Thomas B. Burton answered on Nov 11, 2020

I often advise clients not to add their children to the title of their home, because it can inadvertently expose the parent to creditor claims of the child through divorce, bankruptcy or a lawsuit. However, for you, if your Dad adds you to the title to the home, you would immediately become liable... Read more »

1 Answer | Asked in Real Estate Law and Probate for Wisconsin on
Q: How do I get dads house titled in my name when he died in 1988 and I have lived there ever since and taxes come care of

Dad had no will and I have been living there and paying taxes that come in his name in care of me. My brothers and I split everything and i got the house but never got the deed changed and now i am older and need to get it in my name.

Thomas B. Burton
Thomas B. Burton answered on Oct 12, 2020

Hello, I think you are going to need to work with a probate attorney, to get the house transferred from your Father's name to your name. If there was a probate when he died, the deed to the house should have been changed at that time. If you inherited the house via deed, there may be a way to... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: My son and daughter in law died. DIL had life ins with my son as beneficiary. Does that policy get spllit in the estate?
Thomas B. Burton
Thomas B. Burton answered on Oct 8, 2020

I am sorry for your loss. If your daughter-in-law named your son as the primary beneficiary, then he would receive the proceeds if he survived her. If she named a contingent beneficiary, then that person would receive the assets if your son did not outlive the survival period outlined in the... Read more »

1 Answer | Asked in Contracts and Estate Planning for Wisconsin on
Q: I'd like to know how I end the easement on my property.
Thomas B. Burton
Thomas B. Burton answered on Oct 7, 2020

There is no one answer to this question. Whether you have the ability to end the easement, is going to depend on a variety of factors, including the original language in the document in which the easement was granted. I suggest reviewing the deed with the easement language in it with a qualified... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: Can I sign Wisconsin Power of Attorney documents, as the alternate agent, 9 years after they were drafted?

Power of Attorney documents were drafted for my father, with my sister and I listed as primary and alternate agents. I was living out of state when they were drafted, and didn't sign them, but everyone else did. Also, my address and phone number listed in the documents are not current.

Thomas B. Burton
Thomas B. Burton answered on Sep 18, 2020

Hello, I cannot be certain without examining the document completely, but it sounds like you are talking about the line on the document where sometimes the Agent signs to acknowledge that they have been named as Agent (usually somewhere after the principal's signature). I know at my office it... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: My Aunt does not have any children and wants to leave money to me. I have a trust for my children.

She wants to leave the money she has to my trust and not spend more money on one of her own. Can she do this? Can someone leave assets to a trust where they are not the grantor?

Thomas B. Burton
Thomas B. Burton answered on Sep 10, 2020

This is a very interesting question. While it might be possible for her to leave a bequest to your trust, for tax reasons, it might not be desirable. I think you should examine carefully what type of assets she wants to leave to the trust, and the language of your own trust with an experienced... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on
Q: Is there a form that would allow me to deny any money willed to my children by their grandparents?

Is there a form (like a pre-nup) but a "Post-nup" per say that I could fill out stating I don't want any of my husbands money if he should pass and it should go to our kids?

Thomas B. Burton
Thomas B. Burton answered on Aug 26, 2020

If/when your husband passes away you can work with an attorney to complete a disclaimer, and if your children are the next named beneficiaires in the Will or Trust it would go to them. If your husband is still alive, you could have him alter his estate planning documents now to accomplish this... Read more »

1 Answer | Asked in Real Estate Law for Wisconsin on
Q: Can a real estate lawyer help me with rent to own property

The process

Thomas B. Burton
Thomas B. Burton answered on Aug 25, 2020

If you are buying a property on a land contract, I recommend you have it prepared or reviewed by your own attorney before entering into such a contract. Often these types of contracts can favor the drafter (the person preparing the contract) so if you are considering entering such a contract it is... Read more »

1 Answer | Asked in Estate Planning and Probate for Wisconsin on
Q: My dad died 6 years ago & his house is still in his name even though I live in it. How do I get it in my name w/out atty

I have my dad's Will. It names me and both my brothers as the homeowner's in the event of his death. My brother's want to quit claim deed their share to me since I live in the house and need to get it in my name to get homeowner's insurance on it. I was told it has to go through... Read more »

Thomas B. Burton
Thomas B. Burton answered on Aug 5, 2020

I am sorry to hear about your father's passing. I would suggest either saving up the money to hire an attorney to help you get the house through probate, or attempting to open the probate process on your own. If the real estate has value (presumably it does since you want to get the house into... Read more »

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