Dealing with the loss of a loved one is an emotionally challenging experience that also comes with several legal and administrative responsibilities. One of the most common questions that arise during this difficult time is, "How long can a house stay in a deceased person's name?"
We’ll explain the factors determining how much time passes before the deed must be transferred and discuss the steps to take to update property titles and deeds.
Key Takeaways
The time a house can stay in a deceased person’s name depends on state laws, the size and complexity of the estate, and whether it must go through probate.
To update names on property titles and deeds, you must obtain a death certificate, complete and file required forms, and pay any required fees.
Using a secure system like Trustworthy to organize all of your important legal documents can save you time and energy when changing the name on a property deed or title.
How Long Can a House Stay in a Deceased Person's Name?
The length of time a house can remain in a deceased person's name depends on several factors, including the state's laws, the complexity of the estate, and the actions taken by the executor or administrator.
The Hive Law indicates, "A house can stay in a deceased person's name until either the probate process is completed or legal actions require a change in ownership. Typically, the probate process takes 6 months to 2 years, depending on the jurisdiction and complexity of the estate. If there's a will and no disputes, the process could be on the shorter end of that range."
In general, the process of transferring ownership of a deceased person's property should begin as soon as possible after their death. However, the exact timeframe can vary depending on the circumstances:
Probate Process
If the deceased's estate must go through probate, the process of transferring property ownership can take several months to a year or more, depending on the complexity of the estate and any disputes that arise.
During probate, the executor or administrator appointed by the court will be responsible for managing the estate, including transferring ownership of the deceased's property to the rightful heirs or beneficiaries. This process involves filing a petition with the probate court, creating an inventory of the deceased's assets, notifying creditors and beneficiaries, paying debts and taxes, and distributing the remaining assets to the beneficiaries.
According to Bill Eaves, an associate broker and probate expert: “For estates that need to be probated, it’ll take approximately nine to 12 months to fully probate the estate, and it may take up to two years depending on how complicated the estate is and how fast you get everything into the court, and if you hire an attorney or not. An attorney will normally get it done a lot faster.”
Small Estates
Some states have simplified procedures for small estates falling below a certain value threshold, which can expedite the process of transferring property ownership. These procedures allow the heirs or beneficiaries to transfer ownership of the deceased's property without going through the full probate process.
The specific requirements and value thresholds for small estate procedures vary by state. In some states, the threshold may be as low as $20,000, while in others, it may be $100,000 or more. To qualify for a small estate procedure, the value of the deceased's assets must fall below the state's threshold, and there must be no disputes among the heirs or creditors.
If the estate qualifies for a small estate procedure, the heirs or beneficiaries can typically transfer ownership of the deceased's property by filing a simple affidavit or form with the appropriate county or state agency. This process can be much faster and less expensive than going through the full probate process. Heirs can take possession of the property within a few weeks or months.
Living Trusts
If the deceased had a properly funded living trust, the property held in the trust can typically be transferred to the beneficiaries more quickly, as it does not need to go through probate. A living trust is a legal arrangement in which the owner (the grantor) transfers ownership of their assets to the trust during their lifetime and names a trustee to manage the assets.
Eaves notes, “A trust can stay open 21 years after a person’s passing.”
One of the primary advantages of a living trust is that it allows the grantor's assets to be distributed to the beneficiaries without going through probate. When the grantor passes away, the trustee can quickly transfer ownership of the trust property to the beneficiaries according to the terms of the trust agreement.
This process can be much faster than probate, as it does not require court oversight or approval. Additionally, living trusts offer greater privacy than probate, as the trust agreement and the distribution of assets are not a matter of public record.
However, it's important to note that a living trust must be properly funded during the grantor's lifetime in order to avoid probate. This means the grantor must transfer ownership of their assets to the trust while they are still alive. If any assets are left outside of the trust at the time of the grantor's death, they may still need to go through probate.
Joint Ownership
Joint ownership with rights of survivorship is a type of property ownership in which two or more people own an asset together, and when one owner dies, their share of the property automatically passes to the surviving owner(s).
When one of the joint owners passes away, the surviving owner(s) can typically assume full ownership of the property without going through probate or any additional legal processes.
To prove that the transfer of ownership has occurred, the surviving owner(s) will typically need to provide a copy of the deceased owner's death certificate to the appropriate county or state agency, along with any necessary forms or affidavits. Once this documentation is filed, the property records will be updated to reflect the new ownership.
Updating Property Titles and Deeds
The specific steps involved in this process can vary depending on the type of property and the state's requirements, but generally include:
Obtaining a Death Certificate
One of the first steps in transferring ownership of a deceased person's property is to obtain certified copies of their death certificate. To obtain copies, you typically need to contact the vital records office in the state where the deceased passed away.
When requesting death certificates, you'll need to provide certain information about the deceased, such as their full name, date of death, place of death, and your relationship to them. You may also need to provide proof of your own identity, such as a driver's license or passport.
It's a good idea to request multiple certified copies of the death certificate, as you may need to provide them to various agencies and institutions during the property transfer process. There is usually a fee for each copy requested, which can vary by state.
Completing the Appropriate Forms
Depending on the state and the type of property being transferred, you may need to complete various forms to transfer ownership from the deceased to the rightful heirs or beneficiaries. These forms help establish the legal basis for the transfer and ensure that all necessary information is properly documented.
Common forms that may be required include:
Affidavit of heirship: It identifies the legal heirs of the deceased and their relationship to the deceased. It may be required if the deceased did not leave a will or if the property is being transferred through intestate succession.
Deed of distribution: It’s used to transfer ownership of real property from the deceased's estate to the beneficiaries. It typically requires the signature of the executor or administrator and may need to be notarized.
Transfer on death deed: In some states, property owners can use a transfer on death deed to designate a beneficiary who will automatically inherit the property upon the owner's death without the need for probate.
Affidavit of surviving joint tenant: If the property was owned in joint tenancy with right of survivorship, the surviving owner may need to complete an affidavit to establish their sole ownership of the property.
The specific forms required will depend on the circumstances of the estate and the laws of the state where the property is located.
Filing the Forms With the Appropriate Agency
The specific agency where you'll need to file the forms will depend on the type of property being transferred and the laws of the state where the property is located. Common agencies include:
County recorder's office: For real property, such as houses or land, you'll typically need to file the deed or other transfer documents with the county recorder's office where the property is located.
Department of motor vehicles: For vehicles, such as cars or boats, you may need to file transfer documents and obtain a new title in the beneficiary's name.
Financial institutions: For financial assets, such as bank accounts or investment accounts, you'll need to work with the relevant financial institutions to transfer ownership to the beneficiaries, which may involve providing death certificates and other documentation.
Keep copies of all documents filed and follow up with the appropriate agencies to ensure that the transfer has been properly recorded. This can help avoid potential legal disputes or complications down the road.
Trustworthy can help simplify this process by providing a secure platform for storing and managing important documents related to the deceased's estate. By leveraging Trustworthy's sharing feature, you can ensure important documents are organized, secure, and easily accessible when needed.
Paying Required Fees
Transferring ownership of a deceased person's property often involves paying various fees and costs associated with the process. These fees can vary depending on the type of property, the state where the property is located, and the specific agencies involved in the transfer.
Some common fees required include:
Recording fees: When filing a deed or other transfer document with the county recorder's office, you may need to pay a recording fee to cover the cost of processing and storing the document.
Transfer taxes: Some states or local governments may impose transfer taxes on the transfer of real property, which are typically based on the value of the property being transferred.
Probate fees: If the property is being transferred through the probate process, there may be court fees, attorney fees, and other costs associated with administering the estate.
Vehicle registration fees: If transferring ownership of a vehicle, you may need to pay registration fees or other costs to obtain a new title and registration in the beneficiary's name.
Appraisal fees: In some cases, you may need to obtain a professional appraisal of the property to determine its value for tax or distribution purposes, which can involve additional fees.
It's important to budget for these fees and costs when planning the transfer of the deceased's property and to ensure that the estate or the beneficiaries have sufficient funds to cover them. In some cases, the fees may be paid from the estate's assets before distribution to the beneficiaries.
Frequently Asked Questions
Can property be automatically transferred upon death?
Yes, if the property is owned in joint tenancy with right of survivorship, as tenancy by the entirety, or is listed in a transfer-on-death deed, it can be transferred automatically without probate.
What taxes are involved when transferring property after death?
Depending on the state, there may be inheritance taxes or estate taxes required. The basis of the property for capital gains tax will generally be its fair market value at the time of the decedent's death.
Is a lawyer required to transfer property of a deceased person?
While not always legally required, it is highly advisable to consult with a lawyer to navigate the complexities of estate laws and ensure the transfer is legally sound.
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