One common way to avoid the probate requirement for real estate after the owner dies is to add children or other individuals to the property title as joint owners with rights of survivorship. When joint owners have survivorship rights and one joint owner passes away, the remaining owners automatically receive the entire interest of the deceased owner. So, should you do a DIY probate?
Why You Should Not DIY Probate
If there are three joint owners with rights of survivorship, when one passes away, the two remaining owners each own 50 percent of the real estate by operation of law. When the second owner passes away, the surviving owner owns 100 percent of the real estate. Again, probate is not a requirement to make this transfer.
Survivorship Rights with a DIY Probate
To create joint ownership with survivorship rights, the current owner prepares a new deed that transfers the property from themselves (as the original owner) to themselves and the children or other individuals they would like to share in ownership. The deed should also include language to indicate that the recipients are joint owners with rights of survivorship. State law governs the exact language included in the deed. Public land recorders file the signed deed.
Many believe they do not need an attorney to help them prepare and record a new deed. Instead, they think they need only download a deed template. However, deeds are legal documents that must comply with state law to be valid. In addition, in many states, property fails to pass to the other listed owners.
What Happens if There Is a Mistake with My Deed? Drawbacks to a DIY Probate
With a defective deed or a deed discovered before the owner dies, address problems by preparing and recording a corrective deed. Do so in the applicable public land records, depending on your state law. Do this only with the assistance of an attorney. In this way, you will ensure that the correction is actually a correction and causes no additional issues with the deed or property title.
Should You DIY Probate?
If you want to add your children or other beneficiaries to your deed to avoid probate and you think you can save a few bucks by using a form you find online or in a book, think again. Deeds offer very specific requirements, governed by different laws in each state. In other words, a deed valid in New York may not transfer to Florida).
If you want your home or other real estate to pass to your children or other beneficiaries without probate, seek the advice of an attorney familiar with the probate and real estate laws of the state where your property is located. This will ensure that the deed will be valid and that your property will, in fact, avoid probate and pass on to your intended heirs. Adding individuals to your deed may not be the best approach, depending on the circumstances.
There are considerations related to gifting, tax consequences, and potential misuse that you may not have yet considered. In addition, if your ultimate concern is avoiding probate, an experienced estate planning attorney can discuss all the options available to you to ensure that any actions are taken in your best interest and carry out your wishes for your loved ones. If you are interested in crafting a plan to avoid probate for your loved ones, call us.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates offices in Glendora and Upland, California. We provide legal services. We cover San Bernardino, Los Angeles, Orange, and Riverside Counties. This includes several cities. Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
