As I read articles on the Internet I constantly come across so-called experts hawking ways, typically for a fee, to avoid probate. Unfortunately, these salesmen do come across as experts and the damage they cause is immeasurable. Let’s discuss something that I have been seeing more of and which you need to be aware of.
The idea is that you can avoid probate by owning title to real estate jointly with rights of survivorship with your intended beneficiary such as a child or other loved one. You are advised to simply add the beneficiary’s name, as well as some additional “magic words”, and by recording it in with your local county recorder the real estate will pass to the beneficiary outside of probate.
Where does the deed form that you’re supposed to revise come from? The internet of course! Just grab any old deed, fill in your beneficiary’s name and the “magic words” and presto you’ll avoid probate. Deeds are not whatever you want them to be. They are detailed legal documents that must conform to applicable law to be valid. Also, there are no “magic words” that can be inserted in all deeds in all states to avoid probate. Real estate law and probate law are state-specific. What works in one state may not work in another. What I see time and again are defective deeds that did not properly add someone to the deed that also cause a huge headache in probate.
“I admit it, I followed what an “expert” on the Internet told me to do. Please tell me how to fix my mistakes.”
It’s much easier and less expensive to correct a deed while the owner is alive than after they die. It’s as simple as preparing and having a “corrective deed” recorded with your local county recorder. By this point, I’m sure you agree that this should be done with the assistance of an attorney. Any real estate lawyer who lives in your area should be able to help.
The real problems arise when the defective deed is not discovered until after the owner dies. The problem is often not discovered until the supposed new owner tries to sell the property. It’s quite a shock to be told by a title company that you do not own the property you thought you did and therefore you have no right to sell it. Actually, you created an even bigger mess for yourself and will now need to deal with courts, judges, lawyers, and all the time and expense those entail. You can’t just turn to the owner and ask them to sign a corrective deed because they have passed away. The property will end up in probate court where the title will ultimately be determined. During probate, no one will be allowed to sell the property. This can cause liquidity problems for a family who desperately needs the money. I’ve also seen cases where the last person on earth that the decedent would want to inherit the property ends up owning it.
How to avoid these problems
If your goal is to avoid probate when passing your real estate and other assets to your children and loved ones, there are better ways to go about it than using deed forms off the internet. What you are hoping to accomplish, passing your property to your loved ones without the time and expense of probate, is something that is at the foundation of our practice so we 100% agree with your intentions. There are just better ways to go about it.
If you want your real estate and other assets to be given to your beneficiaries without them having to go through the time and expense of probate speak with an estate planning attorney who believes a revocable living trust is the proper foundation of an estate plan. Contact us with any questions or topics you’d like to discuss about your situation.