What happens to an Alaskan’s home after death? The answer depends largely on how the decedent vested title and whether he or she took advantage of any estate planning tools available in Alaska.
When real property is held by spouses as tenants by entirety, the surviving spouse automatically obtains title upon the death of the first spouse. Alaska also recognizes a transfer on death deed (also called a beneficiary deed). When this deed is recorded prior to the grantor’s death, the property is not subject to probate. Rather, it automatically transfers to the named beneficiary in the deed. Property held in trust is also exempt from probate.
Unless the title to real property passes automatically or a transfer on death deed is on record, the decedent’s estate must go through probate. Probate is the court process of transferring a decedent’s property (real and personal) to the person(s) entitled to receive it. (Note: land granted by the Secretary of the Interior to Native Alaskans, designated as restricted property, passes through a separate probate process through the United States Bureau of Indian Affairs.)
Alaska recognizes informal and formal probate processes. Informal probate has more minimal court supervision and is the most commonly used. Formal probate requires more court supervision, and is an option for cases that are less cut-and-dry, such as when a will is contested, or there are disputes between devisees (persons named in a will to receive a decedent’s property, also called a beneficiary) .
AS § 13.16.055 establishes the following order for deciding the appropriate venue for probate proceedings: the judicial district where the decedent was domiciled at the time of death; if not domiciled in Alaska, any judicial district where the decedent owned property at the time of death or the domicile or principal place of business of a fiduciary who comes into the control of the decedent’s property and is subject to Alaska law. If there is no will, the process of transferring assets to heirs is called intestate succession (codified at AS § 13.12.101-114).
The probate process varies slightly depending on whether the decedent left a will. A personal representative – the person whose fiduciary duty is to settle the estate and distribute the decedent’s remaining assets according to law – is determined first by designation in a valid will (if applicable), and then in the following order: the spouse of decedent, if a bequest is made within a will to him or her; a devisee under a will; the spouse of the decedent, though no bequest is made to him or her in a will; any heir of the decedent; and finally, any creditor of the decedent after 45 days have passed (AS 13.16.065(a)).
Administration of the estate officially begins with the issuance of letters (AS 13.16.015). These are either letters of administration (when the decedent dies without a will) or letters testamentary (when the decedent dies with a will), and confirm the personal representative’s authority to settling the decedent’s estate. The personal representative must take several intermediary steps before assets can be distributed or devised. Review Alaska Statues Title 13, resources through the probate court, and, as always, consult a lawyer. Mistakes in estate administration may open the personal representative to personal liability.
The personal representative must execute and record a deed to pass a decedent’s title to real property. In Alaska, personal representatives generally use a quitclaim deed to transfer title to a relative of the deceased. The quitclaim deed provides no warranty of title, and is appropriate for a fiduciary, who “does not know exactly what interest the person who died had in the property and does not want the estate to be responsible for promises about the property” . In some circumstances, such as when a buyer is purchasing the property and is unrelated to the decedent, a personal representative might offer a warranty deed after hiring a title company to research the title’s history .
The deed should meet all formatting and content requirements for documents pertaining to interest in real property in the State of Alaska, including the grantor’s information, grantee information’s and vesting, legal description of the subject property, and the source of the grantor’s title. The personal representative’s deed also requires the name of the decedent and the probate case number. Each personal representative must sign the deed in the presence of a notary public before recording in the recording district wherein the property is located.
Consult a lawyer who can give specific guidance on administering an estate in Alaska, as each situation is unique.