The death of any family member is a devastating and tragic event. It can be overwhelming to deal with all of the logistics following the death of someone we loved, especially while we are still grieving over their loss, but it is important to get everything smoothed out as soon as possible. Sorting out the estate is important considering the family would be interested in figuring it out.
Taking a moment to understand the process for transferring property to new owners is the first step you can take to ensure that the property of your loved ones gets taken care of.
Managing Real Estate
Real estate needs to be taken care of before it can be transferred. You are responsible for paying mortgage/taxes and maintaining the property until it is formally transferred to its new owner or owners.
You may also need to get the property appraised–a professional evaluation of what the property is worth. This information might be required if the estate goes through probate, or to determine whether the estate qualifies for simplified probate procedures. As a beneficiary you may want to know what the estate is worth, or you may need the value for tax purposes.
Is Probate Necessary?
Probate will be required to transfer the real estate to the new owner or owners unless the following conditions are met:
- The real estate was left to someone through a living trust (rather than a will) by the deceased individual.
- To select someone to receive the property after death, the deceased individual completed and submitted a transfer-on-death deed, which is authorized in more than half of states.
- In one of several ways, the dead individual was a co-owner of the property.
To see if the deceased individual was a co-owner of the property, look for the document that transferred ownership to the deceased owner. The document, which might be labeled a quitclaim, grant, joint tenancy, or warranty deed, should specify how the dead individual, as well as any co-owners, held ownership to the property. The manner in which the property can be transferred will be determined by this.
There are a few categories in which the deceased persons owned such property:
Sole Ownership: If the property was solely held by the deceased individual (and there is no living trust or transfer-on-death deed), it will almost certainly have to go through probate before being transferred to whomever receives it or wants to receive it. If the individual dies without a will, state law determines who gets the property.
Joint Tenants: If the deed specifies that title was held in joint tenancy or joint tenancy "with right of survivorship," and one of the co-owners is still living, the surviving co-owner becomes the property's sole owner. To transfer ownership, no probate will be required; the co-owner, however, will need to fill out some papers to indicate that the property is now exclusively owned.
Tenants by the Entirety: If the dead individual owned the property with his or her spouse, it may have been held under tenancy by the entirety in several jurisdictions (also called "tenancy by the entirety"). The only owner is now the surviving spouse. The survivor does not need to go through probate to gain possession.
Community Property: Spouses (and registered domestic partners in some jurisdictions) can own property in community property, which means that it belongs to the pair as a whole. The deed may also mention that they held the land "as husband and wife," indicating that they intended to keep it as their real estate property.
Some community property states include, but are not limited to, Arizona, Nevada, California, Texas, Idaho, Louisiana, New Mexico, Washington, and Wisconsin. The state of Alaska also permits couples to designate real estate as community property, while spouses in states such as Kentucky, South Dakota, and Tennessee can form special community property trusts. Spouses can leave their half-interest in community property to whomever they like; if they don't select a beneficiary, it usually goes to the surviving spouse.
Community Property with Right of Survivorship: Wisconsin, Arizona, California, and Nevada allows property to be held "with right of survivorship". When a spouse passes away, the property automatically passes to the surviving spouse, with no need for probate process.
Tenancy in Common: Co-owners rarely own real estate as individuals in common, although this type of ownership may exist if the co-owners inherited the property—for example, if they were siblings who inherited a house from their parents—or jointly shared a business. If there is no will, the dead co-stake owner's in the property transfers to the nearest relatives under state law. To transfer ownership of the property, probate will be required.
How to Transfer Real Estate After Death
If the real estate is held in a trust: If the property was held in trust by the dead individual, the most recent deed should demonstrate that the property was transferred to the trust's trustee.
If the real estate is the topic of a transfer-on-death deed: If a transfer-on-death deed was filed by the now deceased individual, the deed will name the new owner of the property. The new owner will have to file an affidavit (a short declaration) and a copy of the individual’s death certificate with the county's property records office to complete any paperwork.
If there's a surviving co-owner who inherits the property: Although the requirements differ by state or even county, the surviving co-owner must file a statement in the county's property records office explaining why he or she is now the sole owner, as well as show a death certificate.
If you are in need of a highly qualified and experienced attorney regarding transferring estates, please contact the Law Office of Inna Fershteyn at (718) 333-2394 to have all of your authorization questions answered.