Transferring Real Estate in a Will
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Can I Transfer Real Estate in a Will?
Real estate is a term used to indicate land, structures on land, and fixtures inside the structure, such as light switches, sinks, and mounted lamps. Anything that is not “fixed” to the house is known as personal property, or, as it is sometimes called, chattel.
A will is a legally binding document that gives instructions about what will happen to a person’s property and possessions after he or she dies.
If a person dies without a will, their property will be divided among heirs according to laws of the state in which they lived or where their property is located. The state that governs the will is determined by the person's domicile, or the state where they have spent the most time and where they plan to return. If they own property in another state, that state will have ancillary jurisdiction over the will proceedings.
Real property and personal property can both be transferred through a will.
What Are Some Obstacles to Transferring Property in a Will?
Will proceedings are subject to probate, legal proceedings to determine the validity of the will and the deceased’s instructions. Probate can be a very time-consuming and costly process. For this reason, many people choose to transfer their real property to heirs outside of a will. There are a number of ways in which this can legally be done.
- Living Trust: Adding a person to act as a trustee on your property before death through a living trust can be complicated and costly, but the work is done before the death of the property owner. The transfer process is also less complicated than probate.
- Co-Ownership: Adding someone to the ownership of the property before death is a way to avoid probate and transferring real estate through a will. Tenancy-in-common, joint tenancy, and tenancy-by-the-entirety are methods of co-ownership that transfer property legally from the deceased party to the living one.
- Life Estate: Setting up a life estate is another way to transfer real estate to someone else after death. This gives the grantee access to the estate for as long as they are living. The estate terminates along with the life of the estate holder.
How Does Transferred Real Estate Affect Tenants?
In most states, new owners are usually bound by the terms of the existing lease. The new landlord can’t evict a tenant in the middle of the lease or raise the rent on the tenant during the life of the lease. This is true even if the new landlord wasn’t aware of the lease prior to taking ownership of the building. If the lease is valid, the new landlord is bound to its terms.
Sometimes, a current lease has clause that favor the new landlord. For instance, if a tenant is on a month-to-month lease, the landlord can dismiss the tenant at the end of the month. If the lease has a clause that terminates the lease in the event of transfer or sale of property, the tenant may have to leave earlier than he or she expected to. Most standard leases don’t contain this kind of clause, so it is important to read the lease thoroughly before signing it.
Do I Need a Trusts and Estates Lawyer?
Trusts and Estates law is very complex. The statutes that set the guidelines for the law have changed periodically, and new legal actions are determined by the date of the deceased. It is possible to have outdated laws apply to new legal problems if the deceased passed away before a new statute was enacted. This is an area of law where small mistakes can be very costly, so it is crucial to consult an estate lawyer about any issues regarding the transfer of property through a will or outside of a will.
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Last Modified: 03-15-2016 12:33 PM PDT
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