In this article, we’ll discuss the transfer of property rights after death and the value of placing heirs on a title to real estate.
Transfer of Property Rights
When someone passes away, there are a number of ways that we can deal with the real estate of that individual. If you’re interested in the options you have when it comes to the transfer of property rights, keep reading.
One way to transfer real estate is through probate. That’s where we go into court and actually file an application for the appointment of a personal representative.
When a personal representative is appointed, that personal representative is empowered to sell the real estate owned by the deceased.
Affidavit of Succession
The other option is to prepare and file an affidavit of succession to real property. There are certain criteria that must be met to do an affidavit of succession.
You must show how you are entitled to receive the property. There are several options:
- You are named in the will and can provide a certified copy of the will.
- You are the spouse of the decedent.
- If there is no surviving spouse and you are the child of the decedent.
- You are the parent of the decedent who had no surviving spouse or child.
- You are the sibling of the decedent who has no surviving parent, spouse, or child
- The decedent died without a will and you are the sole heir.
- The decedent had a valid will but all those with equal or greater rights than you to receive the property assigned their interests in the estate to you. You must provide signed documentation and attach it to the affidavit.
- The decedent died without a will and all those with equal or greater rights than you to receive the property have assigned their interests in the estate to you. You must provide signed documentation and attach it to the affidavit.
If these criteria are met, then the heirs will actually take title to the real estate. Then if they want to sell the real estate, they can do so because they are owners of the property.
Click here to see the Maricopa County Superior Court – Affidavit for Transfer of Title to Real Property. Get access to other state and county resources on our Legal Resources page.
If the deceased had done some preplanning, they could also have done what’s called a beneficiary deed. This type of deed was executed while they were still living.
A beneficiary deed states that when they pass away, their beneficiaries or their heirs, are to take title to the real estate. In that case, all you have to do to transfer ownership is to record a death certificate.
Potential Problems with Placing Heirs on a Real Estate Title
There are a couple of issues that should be addressed before putting heirs on title to real estate.
One potential problem though with considering the transfer of property rights and placing heirs on title to the real estate, is that you are potentially exposing them to liability associated with owning this specific piece of property.
For example, if somebody were to come on to the property and injure themselves, the owner of the real estate is liable.
Consequently, if the heirs have taken the title to the property, at that point, then they would be potentially responsible for those injuries.
The second problem that heirs may face is if there are any issues with the property. If the heirs knew of or should have known of, the problems, and they didn’t disclose these issues to the buyer of the property, then the buyer would have a claim against the heirs. If the heirs were not placed on title, the buyer’s claim would then be limited to the assets of the estate.
Liquidating or Selling Real Property
If your goal is to simply liquidate or sell the real property upon your death, then it may be better not to put the heirs on the title. Simply do probate and have the personal representative sell the property.
That way, the only liability exposure for the property is the estate and not the heirs and their individual assets.
Learn more about Real Estate Transaction Legal Issues with Sean St Clair on this blog and series of videos.
If you have any questions regarding probate, affidavit of succession, beneficiary deed, the transfer of property rights or any other real estate related questions, please feel free to call us, (480) 788-9911.