Transferring Real Estate After Death
When Will The Probate Court Be Involved?
How you can transfer real estate in the estate to the new owner depends on how title was held by the deceased.
If the estate you’re dealing with contains real estate, it’s probably the most valuable single asset in the estate and surviving family members are going to be extremely interested in what happens to it. If more than one person inherits it, there are many opportunities for conflict. But first, let’s look at how the property can be transferred to its new owners.
As a reminder, when there is not will and no trust and/or if the deceased only had a will , the probate court will determine a decedent's estate value and who will be the beneficiaries of the estate. The probate court will also appoint an executor who will be in charge of the estate distribution.
Below is a recap, for informational purposes only, of when the probate court will be involved when a person died without a Trust.
When Will Probate Be Necessary?
First, find the deed that transferred the property to the deceased owner. The deed should state how the deceased person, and any co-owners, held title to the property. That will determine how the property can be transferred.
If the property was owned in the deceased person’s name alone, it will probably have to go through probate to be transferred to whomever inherits it. Who inherits is determined by the person’s will or, if there is no will, by state law. Probate is necessary.
If the deed says title was held in joint tenancy or joint tenancy “with right of survivorship,” then the surviving co-owner is now automatically the sole owner of the property. No probate will be necessary to transfer ownership, though the new owner will need to complete some paperwork to make it clear that the property is now solely owned. No probate is necessary.
In community property states like California, spouses can hold property in community property, meaning that it’s owned by the couple together. The deed may also say that they owned the real estate “as husband and wife”; that also shows an intent to hold the real estate as community property. In community property states, spouses are free to leave their half-interest in community property to whomever they choose; generally, if they don’t name a different beneficiary, it passes to the surviving spouse. No probate is necessary.
Community property with right of survivorship
Community property states like California offer the option of holding property this way. When the first spouse dies, it gives the survivor automatic ownership of the property. No probate is necessary.
Tenancy in common
Co-owners seldom own real estate as tenants in common, but you might come across this form of ownership if the co-owners inherited the land - for example, they were siblings who inherited a house from their parents - or were in business together. Each co-owner can name a beneficiary in his or her will; if there’s no will, the deceased co-owner’s interest in the property passes under state law to the closest relatives. Probate will be necessary to transfer the interest in the property.
Source: Estateplansf.com / Realtor.com
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