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Whether or not real estate will pass through probate depends on the words on the deed.
If the deed is in your name alone, or if the property is in your name and the name of another, without any “magic words,” the real property is probate property.
There are several ways to keep real estate out of probate.
If you want to share full ownership with someone else, such as your spouse, this is presently done through a Survivorship Deed. A Survivorship Deed contains the magic words “to John Doe and Jane Doe for their joint lives, remainder to the survivor of them." Upon the death of the first to die, the surviving tenant needs only to record an affidavit with respect to the first to die, and title is vested solely in the name of the survivor.
Be careful when using a Survivorship Deed, especially if the co-owner is not your spouse. Remember, the other person has full ownership rights:
If you do not want to give equal ownership rights to someone during your life, but want them to receive the property after your death, you can file a Transfer on Death designation. This is a document that says that you own the property, and that on your death, the property will go to the person(s) named. You can revoke or change the beneficiary at any time. Upon your death, the beneficiary needs only to record an affidavit and title will be vested in the beneficiary’s name.
A Transfer of Death Designation is not without its own set of issues:
If you do not own the property at the time of your death, but instead the property is owned by a Trust, it is not subject to probate. Difficulties in selling the property may also be resolved because the trustee alone has the power to sell the real estate, can determine the terms of sale, and can sign the deed.
There is much to think about when considering real estate as part of your estate planning. We are happy to help you through the process if you contact us.