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We are often asked about methods to distribute property to our client’s heirs without the need for probate. Once important way to keep real estate from being subjected to probate is the use of a beneficiary deed. Such deed allows the present owner of the real estate to maintain control of the real estate during his or her lifetime. Following his or her death the real estate can then pass directly to his or her heirs without the need of court involvement of probate.
Why Should I Use a Beneficiary Deed?
There are many different reasons that a person may elect to use a beneficiary deed to avoid probate. Some of the common reasons are as follows:
- Probate is a long process. Property that must pass through probate is often tied up in court for at least six months, and often more than a year, before it can be enjoyed by the intended beneficiaries.
- Probate can be expensive. There are numerous court fees, newspaper publishing fees, executor fees, auction fees, and more involved in probate. By using a beneficiary deed and other non-probate transfers these expenses can be avoided.
- Probate creates a public record. Any probate that passes through probate will be inventoried with the court and become a public record.
How Does a Beneficiary Deed Work?
A beneficiary deed is a written document that is created during the lifetime of the owner or owners of real estate that desire to provide for how such real estate will be divided following their deaths. A beneficiary deed can be created either by a single person who owns real estate or by a husband and wife together.
A beneficiary deed must include the legal description of the property to be conveyed. It also must be signed before a notary by each owner of the property. It also must clearly list the identity of the persons to receive the property, what happens if any of those persons die before the person(s) creating the beneficiary deed. Finally, it must be recorded with the recorder of deeds for the county in which the real estate is located – if the deed is not recorded it will not be effective.
A huge benefit of the beneficiary deed over other estate planning devices, such as a trust or life estate, is that the present owner continues to have full control over the property. The owner may make improvements to the property, use the property as collateral for a mortgage or home equity loan, or even sell the property (in which case the beneficiary deed becomes automatically void).
Upon the death of the owner of the real estate (or in the case of spouses or joint owners, then upon the death of the last surviving spouse or joint owner) the only action required by the recipients of the property is to record the death certificate(s) with the recorder of deeds. Once this is done the recipients are immediately the rightful owners of the real estate with no need for court involvement.
There are many benefits to creating a beneficiary deed. Our office offers flat rates for documents, and is standing by to assist you in preparing, executing, and recording your beneficiary deed. Please also contact our office to discuss other non-probate transfers such as transfer on death or pay on death orders for bank accounts, business interests, or stocks, as well as beneficiary designations for life insurance or other death benefits. It is often possible to establish non-probate transfers on all assets, and thereby completely avoid probate.