YOU HAVE QUESTIONS, WE HAVE ANSWERS!
VIVA ESCROW Q & A SEGMENT
(Real questions sent to us – verbatim!)
I want to avoid probate. Can I sign a deed and keep it safe, maybe in a safe deposit box, so that if something happens to me, my beneficiaries can go to the safe deposit box and pull out the deed? Can I avoid probate that way?
That IS NOT the way to avoid probate! For an individual to avoid probate it is best to put the property in a Trust, along with everything else that you want to leave for your beneficiaries. The owner still has control over those assets during his lifetime, including the real estate, and if he needs to change the beneficiaries, he can do so by doing an Amendment to the Trust.
I am sure that a Probate Attorney can expound more on this but from an Escrow Officer who has been doing ownership transfers for over 40 years, keeping an old signed but not recorded deed in a safety deposit box for future use is a very bad way of passing on real estate. In my article about Deeds and Quitclaim Deeds, one of the most important components for a Deed to be valid, besides the signature and description of the property, is that it has to be delivered to and accepted by the other party(ies) . If you keep the deed in a safety deposit box, this is not “delivery” and the Courts may not find the wishes of the deceased acceptable and then it will be too late.
Here is my article on “What Makes a Deed Good and Valid”
I strongly recommend that you DO NOT do something like this. I understand you want to save money – and probate and Trusts require money – but putting your asset transfer in a safe deposit box is not the way to do this. I recommend you go to an attorney who does Trusts and have them help you. Spend a little money now for peace of mind later, especially for your beneficiaries.
I have to disclose that at this time there is a document called “Transfer On Death” (TOD) Deed which allows the owner to sign a deed on his principal residence to his beneficiaries and have it recorded. This transfer would only be effective upon the death of the owner. This form is not widely used in California and if the property were acquired via TOD and then later sold, an insuring Title Company would have to seriously look into its details to decide whether they would accept it and insure the property. If you are using this TOD to avoid probate then you must get an attorney to give you legal counsel before you contemplate doing this. But that will involve the payment of legal consultation fees!
My aunt just passed away and we realized that the properties that she owned and listed in the Trust were never actually transferred to the Trust. We are trying to sell the properties and they show under her name as an individual. We were told that the properties will have to be probated. Is there anything we can do?
You will need to spend a little time and money, but probably not as much as what is needed if you go through probate. You will hire a probate attorney and ask them to file a Heggstad Petition. This is a petition to Probate Court to include the ownership of the properties, which were listed in the Trust but did not get transferred, to the Trust.
If you have set up your Trust, whether you had help from an attorney or not, you need to be sure you actually transfer your assets to the Trust. Most important is that you and/or the attorney will draw up a Trust Transfer Deed to be signed, notarized and then recorded. This is a very important part of setting up a Trust that should not be forgotten.
Also, if you bought properties after your Trust has been set up, you must Amend your Trust to list those new properties and also do the Trust Transfer Deeds.
~ Funny Video of the Month ~
What is man’s UNIVERSAL WEAKNESS?
~ Quote of the Month ~
“A fine is a tax for doing wrong. A tax is a fine for doing well”
~Author unknown ~
My YouTube Offering for the Month –
Escrow in the Trenches!
A short story of property taxes – Were they paid? Were they not paid? What happens if they were lost in transit and escrow is closing?
Here is the link:
You Have Questions? We Have Answers!
Juliana Tu, CSEO, CEO, CBSS, CEI, SASIP
“Escrow is my FOREMOST language!”
The opinions expressed in this blog are solely the author’s.
Your comments and viewpoints are always welcome.
Info @ VivaEscrow.com