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Transferring the Title to Real Property During Probate

Transferring the Title to Real Property During Probate

If you have been named the executor of an estate, you may be wondering how probate will affect the transference of real property from the estate to the heir. Indeed, probate itself can be confusing with all of the legal requirements, laws, and family expectations you may already be dealing with in your role as executor. If you decide to forge ahead without the aid of a probate lawyer, there are several aspects of the process which are important to understand.

As the estate’s executor, you will be required to file certain documents with the probate court before you will be authorized to transfer or liquidated the estate’s assets to the designated heirs. If the estate includes a home or undeveloped land, you must first reconcile any outstanding mortgage debt, liens against the real property, and any other estate debts and pay them from the estate’s funds. Once you fulfill these responsibilities, you will be able to transfer the title. That is the overview. Here are more of the details, though they may vary from your circumstances somewhat. If you are unsure about any aspect of the probate process or if you are uncomfortable fulfilling the role of executor, consider consulting a probate lawyer, like a probate attorney in Phoneix, AZ, who can ensure that you complete the process without any legal loose ends or other concerns.

File a Petition with the Probate Court
Before you begin to release funds from the estate’s checking account to the heirs, you must document all of the decedent’s assets (along with their value), and their debts. Next, you must file a petition with the probate court that includes your name, the decedent’s name, and the designated heirs as per the decedent’s will. You must also include which assets each of the heirs is to inherit. You must also include the total value of the estate.

  • Combine the estimated value of all the estate’s assets (including real property, personal belongings, valuable artwork and jewelry, vehicles, etc.) to determine an amount.
  • From that amount, subtract the estate’s outstanding debt such as the balance of the real property’s mortgage, credit card balances, etc.
  •  In the probate court petition, specify the estate’s estimated value less its outstanding debt.

Pay the Estate’s Debts
Before the probate court judge will authorize you to release the assets to the heirs, you must first pay off the estate’s debts. This includes taxes, car loans, credit cards, and mortgages. If there are insufficient funds in the estate’s checking account to pay off the debts, it may be necessary to sell the home. Once the home is sold (liquidated in this context), then the remainder of the debts can be paid. However, the probate court must supervise the process of selling the home. Should it be necessary to sell the house or other real property, the title to those sold properties will go to the buyers rather than to the heirs. If there are funds leftover from the sale of the home after the debts have been paid, unless otherwise specified in the will, it may be possible for the heirs to inherit those funds.

Transferring the Real Property’s Title to the Heir
The local or municipal agency that handles title transfers varies from one city to the next. In your city, it may be the county recorder’s office. In effect, the title is transferred when the new title is submitted to the agency. Usually, if no money is exchanged to acquire the property, then registering a title deed is adequate. If the home is sold, the process requires a grant deed. Either type of deed must be signed and notarized. There will be title filing fees, and if it is a probate title transfer, you will need a certified and original death certificate.

Thank you to the experts at Kamper Estrada, LLP, for their insight into probate law.

Why It’s Important for Every Person to Have an Estate Plan

Importance of Estate Plans

Education about estate planning is essential because there are complex elements of creating such documents that most people don’t realize. When establishing an estate plan, you have to do more than just write down your wishes. Your attorney can review your paperwork to check that it would withstand the test in court if a dispute or other problem were to arise after you pass on. Chances are, the last thing you want is for your family to have to deal with a conflict in the midst of their grief.

Here are some answers from some of the most common questions about estate planning:

Why is writing an estate plan so important?

If you want to ensure that your loved ones receive a portion of your assets after your death, then writing an estate plan is vital. Estate planning is also about making preparations just in case you are ever mentally incapacitated. If you don’t write an estate plan, then your belongings — both tangible and intangible — may be distributed by the court based on state law. If you have certain family members that you don’t want touching your assets, then you want to protect your legacy legally through estate planning. Most people aren’t keen on the idea of having the court make decisions about the assets they’ve left behind.

What documents are within an estate plan?

In an estate plan, a person completes documents such as a Last Will and Testament, Power of Attorney, Living Will, and Advance Health Care Directive. Depending on your circumstances, writing a Revocable Living Trust may be beneficial too. Your attorney can assess your situation and recommend whether a Revocable Living Trust is in you and your family’s interest.

Once I complete the documents within an estate plan, am I done? 

Unfortunately, the work doesn’t stop there. It is not advised that a person creates one draft of an estate plan and then forgets about it. As the years go by, things may change in life. Perhaps we have children, get divorced, married, or experience an event that greatly alters our financial status. It is recommended that as things happen, you review your estate plan to see if anything must be corrected. For instance, if you get divorced and your ex is listed as the primary beneficiary (when you don’t want him or her to be), then the name will need to be removed from the estate plan. In general, reading over your estate plan on a regular basis is best.

Will taxes affect my estate?

During estate planning, an estate planning lawyer, like an estate planning lawyer in Gilbert, AZ, can help you understand how taxes may affect your estate and the inheritance to be distributed to beneficiaries. The four kinds of taxes that may influence your estate are gift taxes, estate taxes (including state), income taxes, and generation-skipping transfer taxes. If you have questions about taxes, it is imperative that you ask your attorney before an estate plan is finalized.

Thanks to Citadel Law Firm for their insight into why it is important for every person to write an estate plan, and how to go about doing this.

What a Will Can and Cannot Do

Wills Lawyer

If you are planning your estate, you probably know that the main option you have is a will. This is not your only option, however. Before you decide whether or not you want to use one of the alternatives, you should know what a will can and cannot do. There are actually a few things that an alternative can do that a will cannot. You should know, however, that it is always recommended to have a will. You may want an alternative in addition to your will.

What Your Will Can Do

A will is a legal document that describes what your wishes are for after you have died. The primary functions of a will are:

  • Determine who receives your possessions
  • Set a new guardian for underage children
  • Name an executor for your will

The first function is the best-known. A will determines who will receive the contents of your estate. You can decide to give certain possessions to specific individuals and divide your estate up in any way you wish.

Secondly, your will establishes who will become the new guardian of any children you have who are still minors. Most of the time, someone’s spouse will become the new guardian. However, you should also designate who will be the guardian in the event that you and your spouse die at the same time. Your will can also give instructions for any pets you have.

Finally, your will names an executor. Every will needs to have an executor who will ensure it is carried out as accurately as possible. If you do not name an executor, the courts will choose someone for you. However, leaving this out of your will extends the probate period unnecessarily.

What Your Will Cannot Do

It is important to recognize the limitations of your will. Your will cannot:

  • Set conditions on your possessions
  • Establish funeral instructions

If you wish to set conditions on your possessions, you are better off using a trust. For example, with a trust you could specify that your granddaughter would receive your car if she has a driver’s license at the time. That is a condition you would not be able to set with a will.

Secondly, your will cannot establish what your funeral wishes are. You need a separate legal document for that, although your will can mention this separate document to ensure that your executor knows about it.

A wills and trusts lawyer in Chandler, AZ can help you better understand all your options. It is always a good idea to speak with a legal professional.

 

Thanks to Citadel Law Firm for their insight into estate planning and what a will can do.

Understanding the Limitations of a Will

Wills Lawyer

Most people understand what a will does. It is a legal document primarily used for determining who will receive your possessions after your death. A will also has a few other legal uses which make it important for everyone to have a will. However, there are a few limitations that wills have. If you understand what a will cannot do, you can know when an alternative might be better suited to your needs. This short guide will go over what you should not expect your will to do.

Setting Conditions

Your will cannot set any conditions on passing on your possessions. The will can only specify who receives what. It may be desirable to set conditions. For example, you could leave your grandson $1,000 if he is unmarried or $5,000 if he is married as an extra present. This example would be completely impossible with a will.

If you wish to set conditions on your possessions, you may be better of using a trust instead. A trust is essentially an agreement where you transfer your possessions to a trustee, who will then transfer them to your loved ones at the time of your death. In fact, the primary advantage a trust offers over a will is the ability to set conditions.

Funeral Arrangements

Another big thing that wills cannot do is establish what your funeral wishes are. This is actually a common misconception and many people assume that a will can do this. If you include your funeral wishes in your will, it will carry no legal weight and your wishes may not be followed.

If you want to specify a certain kind of funeral ceremony, you need a separate legal document dedicated specifically for this purpose. It is a good idea, however, to mention this other document in your will. It will largely be the responsibility of the executor of your will to make sure your funeral wishes are followed. By mentioning this other document in your will, it guarantees that the executor is aware of it and will follow it.

Setting up your estate is not as hard as you might think. The first thing you should do is speak with an estate planning lawyer in Chandler, AZ. A legal professional who specializes in estate planning will be able to explain all your options to you, as well as give advice on how to accomplish exactly what you hope to do with your estate, whether it can be done with just a will or multiple different options together.

 

Thanks to Citadel Law Firm for their insight into estate planning and the limitations of a will.

Why Should I Hire a Trust Litigation Attorney?

Estate Planning Law Firm

Litigation is generally an emotional process, especially when several family members are arguing and disputing their legacy. Navigating probate court can be a frustrating, tiring, and irritating process. When no estate plan is in place, the descendants and beneficiaries of a deceased individual will have to wait for the estate to go through the probate process before it can be distributed. Individuals who pass away having created a will still have to go through probate. However, options to work around the government-imposed estate plan exist, and it’s a good idea to be aware of them before it’s too late. 

What is a Trust?

Trusts are very helpful in terms of estate planning. Items held in trusts aren’t subject to the probate process. Probate can be lengthy, and it can be expensive. Trusts are a way that lawyers avoid that process for certain assets. A trust is an arrangement that allows a third party, called the trustee, to hold the assets for a beneficiary or beneficiaries. It is a legal vehicle that significantly expands your options for managing your assets. This is true whether you’re trying to pass them on to your children or shield your wealth from taxes. 

A trust can also provide the ability to control not only who gets your assets, but also how the money will be paid out. That can be a critical consideration if the beneficiary’s ability to properly handle money is in question.

Duties and Obligations of Trustees

Being a trustee is a significant responsibility with many duties and obligations. Some of these include:

  • Not communicating with beneficiaries effectively
  • Failing to perform routine activities or duties
  • Stealing from the trust
  • Mismanaging property or real estate held in the trust
  • Failing to pay bills associated with trust
  • Not providing standard accounting services
  • Transferring assets to non-beneficiaries
  • Selling or liquidating trust assets inappropriately 

Trust litigation can happen due to misconduct or actual, real fraud on the part of the trustee. Or, it can happen because of misunderstandings and lack of sufficient or clear communication between the trustee and beneficiaries and other interested parties.

Why Hire a Trust Litigation Attorney?

A trust litigation attorney is probably necessary when:

  • Issues with interpretation exist
  • A trust is not set up properly
  • A trustee does not fulfill their duties
  • The trust’s validity is in question
  • An amendment to the trust is in question
  • Undue influence or elder abuse occurred
  • There are disputed claims for or against the trust
  • Disputes exist between beneficiaries
  • A trustee must be removed
  • The grantor of the trust lacked capacity
  • A trustee misappropriated funds (risky investment, theft, etc.)
  • The accounting is contested

When a trustee fails in their responsibilities, litigation may be necessary. If a beneficiary believes the trustee is not assuming their duties adequately, they can pursue legal action to remove the trustee. A trust litigation attorney can defend your interests and reach a resolution that restores your peace of mind. 

A lawyer who is knowledgeable and experienced in trust litigation can help you determine your options to resolve your matter best. Contact a lawyer for more information or to schedule a consultation.

 

Thanks to Citadel Law Firm, a  trust lawyer in Chandler, AZ, for their insight into estate planning and why you should hire a lawyer for trust litigation.