On television and in movies, transferring real estate when someone dies is a simple matter of reading the will. Once everyone knows what’s in the will, like magic, the real estate goes to the right person or entity. In reality, things are rarely so simple. Wills are frequently contested, and disputes between beneficiaries, family members, and random third parties can drag the process out for years. Knowing what to expect can help you write a will that holds up to these disputes. And if you’re concerned that you might not get the inheritance that’s rightfully yours, understanding the basics of property transfers is vitally important.
When There’s a Will
When there’s a valid will, the will must be executed through the probate court. A testator, in legal jargon, is the person who authors the will. Testators can leave property to just about anyone; when there’s a will, there’s no presumption in favor of children, siblings, or spouses. A testator can even leave a portion of his or her estate to a charity, or a person he or she doesn’t know.
This process is typically a fairly streamlined one, particularly if no one disputes the will. If there is cause for dispute, though, the probate process can take months, or even years. Some families fight over wills for the rest of their lives.
When the will is probated, the property transfers are completed at the end of the process, at which point parties to the will will need to ensure they have the right deeds to ensure they become the lawful owners of the property.
When There’s No Will
Many will disputes arise when a testator dies without a will. This scenario, known as dying intestate, can be easily avoided if you routinely update your will. If you or a loved one fails to do so, though, a complex process exists for dividing up real and personal property.
Each state establishes its own order of succession—the legal term for who gets the property. In Georgia, for instance, the order of precedence grants first priority to the deceased’s child or children and spouse, requiring them to split the property equally. If neither children nor spouse exist, the property next goes to the deceased’s parents, then to his or her siblings, continuing down the line all the way to distant cousins and close but unrelated friends. If there are no apparent heirs, the property will go to the state. Because order of succession defines family broadly, though, this is a relatively rare occurrence.
Order of succession approaches to probate don’t distribute the will across multiple parties. Instead, a judge simply goes down the list of succession until he or she finds an appropriate party. For example, say a man dies with no spouse or children, but with a half-brother. That half-brother would inherit everything, even if a cousin or close friend were available.
When there’s no will, would-be beneficiaries can seek to inherit at a judge’s discretion. State rules governing when and whether a judge can ignore the order of succession vary, and generally apply only when it’s clear what the deceased person would have wanted, or when there’s an issue with the property itself. For instance, a bank account jointly held with a brother might go to the brother if he can provide clear evidence that it’s rightfully his.
When There’s a Problem With the Will
Having a will doesn’t automatically mean the testator will get to leave his or her inheritance to the people he or she named in the will. When a will is very old, the beneficiaries it names may no longer be alive, or the named property might no longer exist or be of a substantially higher value. Likewise, late-in-life changes to the will can come into question, particularly if there’s evidence that a dying person consented to a change while under duress.
Your ability to contest a will depends on a number of factors, including when the will was written, by whom, and how courts in your state have interpreted cases involving will disputes. Generally, you can only dispute a will on a few grounds. Those include:
- The age of the testator; people under 18 generally can’t create a will unless they are emancipated minors.
- The mental state of the testator; He or she must know that he or she is making a will, have the mental capacity to understand what he or she is putting into the will, and be able to understand what other people might expect from the will. A father who authors a will while under the influence of prescription painkillers might give rise to a will contest, particularly if he leaves his children or spouse out of the will.
- Whether the testator was under duress; a last-minute plea from a child to a dying parent, threats of incarceration or abuse, and other forms of direct and indirect duress can give rise to a will challenge.
- Fraud; Rarely, a will is an outright fraud, such as when a child alters his or her parent’s will.
- Witnesses; a will must generally be both witnessed and notarized. Otherwise the will may give rise to allegations of fraud.
- The contents of the will itself; state laws governing what counts as a valid will vary. Generally, though, the will should indicate that the testator knows he or she is making a will, should appoint an executor, and should include at least one substantive clause. Wills that contain no useful information or that are not obviously wills can be thrown out.
When a will is contested or invalid, it’s often up to the probate court to determine who gets what. Sometimes, the court will rely on an earlier will, especially if the judge decides that the latest will was fraudulent or signed under duress. In other cases, the court will adopt an order of succession, or hear testimony on who is entitled to what. Sometimes only part of a will is invalidated, while in other cases, the entire thing is thrown out. For this reason, it’s critically important to hire a skilled wills attorney if you plan to contest a will.
When a testator leaves real estate to multiple parties, it can create plenty of confusion, but this scenario is actually fairly common. In most cases, you’ll need to complete and file a deed of distribution indicating who the property owners are and what rights they have to the property.
If one co-owner dies and leaves his or her portion to the children, the other co-owner will remain a co-owner, unless a separate document indicates otherwise.
In either scenario, each property owner owns only a portion of the property and will not be able to sell the entire property without the consent of the other owners. Beneficiaries frequently adopt a number of strategies to deal with this challenge, including:
- Selling the property and divvying up the proceeds.
- Renting the property out, and dividing up the proceeds from rental payments.
- Dividing up property duties. For instance, one person might be charged with keeping the property clean while another finds tenants.
- Allowing one member to purchase in or rent the house while paying the other members of the family for the privilege.
When all parties have equal rights, squabbles are common, since no party has a right to evict another, or to seek full ownership f the property.
What are Vested Property Rights?
If you’re going through the probate process, you’ve probably heard the term vesting a lot. This simply refers to a property right that cannot be taken away. Many wills require that a property right vest before it can be asserted. Some common examples of this include:
- When a will establishes a delay between the death of the testator and when property rights can vest. For instance, many wills specify that if a beneficiary dies within 60 days of the will, his or her property rights will not vest. In this scenario, the property remains with the estate, rather than passing to the beneficiary’s heirs.
- When a will requires something to happen before property rights can vest. For instance, a will might pass money onto a child only when she attains a certain age or graduates from college.
Deeds for Transferring Ownership
Ownership won’t change hands until the will is probated and deeds transferring ownership are completed. This means that a person who immediately moves into his or her deceased parents’ home has little or no legal right to that home until a deed indicates a change in ownership. Some of the most common documents used to transfer ownership or aid the process of ownership include:
- An executor’s deed—This dead transfers ownership from the estate to a beneficiary, pursuant to the terms of the will.
- An administrator’s deed—Like an executor’s deed, an administrator’s deed transfers ownership from the estate to a beneficiary when there is no will.
- Quit claim deed—Rarely used in wills cases, a quit claim deed conveys the deed to the deed recipient.
- Affidavit of death—This document certifies the death of the property owner, removing his or her name from the title to the property. On its own, such an affidavit is not typically sufficient to transfer the property—only to remove the deceased owner’s name from the title.
Though every state establishes its own procedures for the issuance and filing of property deeds, to finalize the transfer of the property, you will always need to file the deed—usually in the office of the clerk of court in the county in which the property is located.