Your client asks you if there is a way to title their home in a manner that will avoid probate. Probate is the manner in which title to property (real and personal) is changed, through court action, from title in the name of the deceased to either whoever is named under a will as a beneficiary, heir or legatee or, if there is no will, to the heirs at law of the decedent. Probate is costly and can take at least 6 months to complete.
Joint tenancy and community property with rights of survivorship are an effective method of transferring title without probate. Upon the death of one owner, the property passes by operation of law to the other. The survivor need only file an Affidavit of Death accompanied by a Death Certificate in order to address the title issues. However, the problem is that this method is shortsighted in several aspects. First, having a couple own real property in either of these ways addresses only the impact of the death of one spouse/owner. If they perish in an accident together, probate will still be required. Second, when a widow/widower adds adult children on the title as joint owners, they needlessly expose the property to the creditors of the child.
A great alternative is the Deed Upon Death. A Deed Upon Death is simply a deed in which the property owner (the “Grantor”) conveys his or her interest in the property to a beneficiary or multiple beneficiaries which becomes effective upon the death of the owner. A deed created pursuant to this section must be recorded with the Recorder in the county in which the property is located in order to be enforceable. The Deed does not create a legal or equitable interest in favor of the designated beneficiary and, therefore, it does not subject the property to claims or process of a creditor of the designated beneficiary. If the property is sold during the Grantor’s lifetime, the Deed Upon Death is automatically extinguished.