One common way to avoid probate of real estate after the owner dies is to hold the title to the property in joint names with rights of survivorship with children or other beneficiaries. This is accomplished by drafting a new deed adding the names of the children and certain legal terms and then recording the new deed.
Many people believe that they do not need an attorney to help them prepare and record the new deed. Instead, they think that a deed form, downloaded from the internet or obtained from a book, is easily filled out and recorded. But deeds are in fact legal documents that must comply with state law in order to be valid. In addition, in most states, property will not pass to the other owners listed in a deed without probate unless certain specific legal terms are used in the deed.
How is a Defective Deed or an Invalid Deed Corrected?
If the problems with a defective deed or an invalid deed are discovered before the owner dies, then preparing and recording a “corrective deed” can address the problems. This should only be done with the assistance of an attorney.
Unfortunately, many times the problems with a defective deed or an invalid deed are not discovered until after the owner dies. If this is the case, then the problems cannot be fixed with a corrective deed since the deceased owner is unable to sign the corrective deed. Instead, the property will most likely need to be probated in order to fix the problems with the title. Aside from the time probate will take there are costs for legal fees and court costs, until the probate court sorts out the issues, heirs will not be able to sell the property. Or, worse yet, someone the owner had intended to disinherit when they prepared and recorded their own deed may inherit the property.
What Should You Do?
If you want your home or other real estate to pass to your children or other beneficiaries without probate, then seek the advice of an attorney who is familiar with the probate and real estate laws of the state where your property is located. This will insure that the deed will be valid and your property will in fact avoid probate and pass to your intended heirs.
If you would like to know more about the proper ways to transfer real property while avoiding probate, please contact us.
