Wisconsin Estate Planning: Transfer of Vehicles After Death
By Attorney Amanda N. Sacks and Attorney Isaiah M. Richie Schloemer Law Firm, S.C.
In most situations, the DMV provides simple forms that can be used to transfer a vehicle after the death of a loved one. However, extra care and planning is needed if you want to transfer vehicles to specific beneficiaries, if you have multiple vehicles, if you have high value vehicles, or in other unique situations.
We recommend you consult with your estate planning attorney to ensure that your vehicles do not force your loved ones to go through probate, a lengthy and expensive process. Each legal situation is unique. This blog is for general educational purposes, you should review your individual planning with a qualified attorney.
How do you transfer a vehicle to an heir in Wisconsin?
If the decedent’s solely-owned property is less than $50,000, probate is not required. An heir or heirs may transfer ownership of a vehicle when a decedent leaves solely-owned property not exceeding $50,000 in value. An heir may title the vehicle in their name as owner or may sign as heir to sell the vehicle. In both cases, Statement of Transfer of Vehicles to a Surviving Spouse, Domestic Partner or Heir form MV2300 is required as a supporting document. To transfer ownership to your name, check the DMV website for their most up to date instructions and forms.
If the decedent’s solely-owned property exceeds $50,000 or the decedent owned more than 5 vehicles, a probate is required (note, the numeric restriction does not apply to a surviving spouse, and there is no limit on antiques more than 20 years old). The vehicle(s) must be transferred by submitting a copy of the personal representative papers, instead of the MV2300 form, along with the application. These papers are issued by the probate court identifying the individual(s) authorized to sign for the interest of the decedent. The personal representative will sign the title as seller and write “personal representative” after their name.
For WI dealer sales, if a vehicle is being traded in by a surviving heir, the heir is required to obtain a title in their name prior to trading it in to a dealer.
Are there ways to avoid this process?
Co-owners can avoid probate by how they take title. Vehicles titled with “or” between the owner names can be transferred with the signature of only one of the persons. Generally, avoid having vehicles titled with “and” between the owner names.
If a client is aging and no longer driving, they could also consider selling vehicles prior to death, or gifting to a family member. Note, however, that clients should exercise caution in making gifts if Title XIX planning is a concern.
What if I want to leave a vehicle to a specific individual?
Your Will or Trust can make a specific bequest of the vehicle to a beneficiary.
Alternatively, a tangible personal property list may be used. This is expressly permitted by Wisconsin Statute 853.32: “A reference in a will to another document that lists tangible personal property not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the distributees with reasonable certainty and is signed and dated by the decedent.” However, care should be exercised, especially if you have multiple vehicles or high value vehicles, to avoid disputes and probate.
Can a Wisconsin Marital Property Agreement be used to transfer vehicles to a surviving spouse or Trust?
The Wisconsin Department of Transportation has taken the position that a Marital Property Agreement cannot be used to transfer vehicles after death.
More specifically, while Wisconsin Statute 766.58(3)(f) permits the use of a Marital Property Agreement (MPA), Wisconsin Statute Chapter 342 (Vehicle Title and Anti-Theft Law) specifically relates to vehicle ownership changes upon death. Specific statute references govern over general statutory direction. Nothing in Section 342.17(4) makes it subject to the provisions of 766.58 (statute permitting use of an MPA), which is a rather general statute governing ownership of marital property, not documents of title issued by the state. A probate court can apply 766.58 to make a determination as to who should be the owner of vehicle(s) and then the personal representative can issue a title in accordance with that determination if that is desired, thereby falling within the requirements of 342.17(4)(a).
The applicable statute, Wisconsin Statute Section 342.17(4), provides:
(a) In all cases of the transfer of a vehicle owned by a decedent, except under par. (b), ward, trustee or bankrupt, the department shall accept as sufficient evidence of the transfer of ownership the following:
- Evidence satisfactory to the department of the issuance of the letters testamentary or other letters authorizing the administration of an estate, letters of guardianship, or letters of trust, or of the appointment of the trustee in bankruptcy;
- The title executed by the personal representative, guardian, or trustee; and
- The evidence concerning payment of sales or use taxes required by s. 77.61 (1) or evidence that the transfer is exempt from such taxes.
- The department shall transfer the decedent’s interest in any vehicle to his or her surviving spouse or domestic partner under ch. 770 upon receipt of the title executed by the surviving spouse or domestic partner and a statement by the spouse or domestic partner which shall state:
- The date of death of the decedent;
- The approximate value and description of the vehicle; and
- That the spouse or domestic partner is personally liable for the decedent’s debts and charges to the extent of the value of the vehicle, subject to s. 859.25.
- The transfer shall not affect any liens upon the vehicle.
- Except as provided in subd. 4., this paragraph is limited to no more than 5 vehicles titled in this state that are less than 20 years old at the time of the transfer under this paragraph. There is no limit on transfer under this paragraph of vehicles titled in this state that are 20 or more years old at the time of transfer under this paragraph.
- The limit in subd. 3.does not apply if the surviving spouse or domestic partner is proceeding under s. 867.03 (1g) and the total value of the decedent’s property subject to administration in the state, including the vehicles transferred under this paragraph, does not exceed $50,000.
(c) Upon compliance with this subsection neither the secretary nor the department shall bear any liability or responsibility for the transfer of such vehicles in accordance with this section.
(d) This subsection does not apply to transfer of interest in a vehicle under s. 342.15 (1) (d).
Once a person dies, the motor vehicle code limits what DMV can do. 342.17(4) applies in “all cases of the transfer of a vehicle owned by a decedent.” So, the person needs to comply with one of the requirements in 342.17(4) to transfer a vehicle owned by a decedent. The most common of these is mentioned in par. (d) -vehicles titled with “or” between the owner names can be transferred with the signature of only one of the persons. Par. (b) allows for transfer to or by surviving spouses or heirs for estates up to $50,000 in value and is limited to 5 or fewer vehicles less than 20 years old (no limit on antiques older than 20 years).
Probate is the alternative set forth in par. (a) and is always available if the other options do not work.
Should I transfer my vehicles to my Trust?
Unless you have vehicles valued at over $50,000 cumulatively, more than 5 vehicles, or another unique situation (e.g. collector cars), you do not need to retitle your vehicles to the Trust.
You can transfer vehicles without probate by using “or” between the owners’ names. In addition, the DMV provides a form for transfer of a vehicle to a surviving spouse or heir if the vehicles are less than $50,000 in value cumulatively and there are no more than 5 vehicles to transfer that are less than 20 years old (note, the numeric restriction does not apply to a surviving spouse, and there is no limit on antiques more than 20 years old). An heir or heirs may transfer ownership of a vehicle when a decedent leaves solely-owned property not exceeding $50,000 in value. An heir may title the vehicle in their name as owner or may sign as heir to sell the vehicle. In both cases, Statement of Transfer of Vehicles to a Surviving Spouse, Domestic Partner or Heir form MV2300 is required as a supporting document.
However, if you have vehicles valued at over $50,000 (collectively), you own more than 5 vehicles that are less than 20 years old, or another unique circumstances (e.g. ownership of collector cars), we would then advise that you consider retitling in the name of the Trust. If you need to retitle vehicles, visit your local Department of Motor Vehicles office and obtain the forms necessary to do so. The form to use in transferring title to the Trust is MV2790. This form is available from the Department of Motor Vehicles or may be downloaded from the Department of Transportation website located at the following address: http://www.dot.wisconsin.gov/drivers/vehicles/veh‑forms.htm.
How do I transfer equipment without a title to the Trust?
Any boats, trailers, RV’s, and the like that do not have a title are typically covered under a Declaration of Trust Ownership of Personal and Household Articles. This document is attached as Schedule A to most trusts drafted by our Firm.
If you have questions about this article or need assistance, call our office at 262-334-3471 to schedule an appointment with one of our Estate Planning Attorneys. Our West Bend estate planning attorneys serve clients throughout the state of Wisconsin and our neighboring communities (Jackson, Slinger, Hartford, Kewaskum).
Originally published: July 8, 2022.
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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. -Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].