Title Inheritance is an area of real estate transactions best explored with an experienced real estate attorney. To reduce such a complex subject to a brief article may not address the complexities of your own title inheritance situation.
Having said that, real property with a clear title may pass to an heir or devisee if the previous owner has gone through the probate process in the county in which the property is located. The title must be examined by a title agent, searching for any defects in the title, (judgments, liens, mortgages, unpaid
tax bills, etc.) for at least 60 years back. If the land did not pass by virtue of having been probated or if any defect is found, there is a “cloud” on the title.
Is probate always necessary?
In most states, if the decedents signed no title to the heir, the property may only be passed to the heir via probate. When a person dies owning real property, the title must be passed through the estate, via a formal probate, and a Deed of Distribution entered into the public record. Any estate where the deceased died
10 years earlier can’t be probated. In that instance, a Determination of Heirs action has to be instituted to pass title to the heirs. The court order will act as the deed to be passed along to the heir.
However in some states (Hawaii, Illinois, Nebraska, Nevada, North Dakota, Oregon. Arizona, Arkansas, Colorado, Indiana, Kansas, Minnesota, Missouri Montana, New Mexico, Ohio, Oklahoma, Wisconsin and Nevada), asset-specific wills substitutes for the transfer of property at death. The owner may designate beneficiaries to receive the property at the owner’s death without waiting for probate.
The Uniform Real Property Transfer On Death Act
ALTA (the American Land Transfer Association) explains, “In an effort to simplify the transfer of property to a beneficiary on the owner’s death without probate, the Uniform Law Commission in 2009 promulgated the Uniform Real Property Transfer on Death Act (URPTODA).
Under URPTODA, real property passes by means of a recorded transfer on death (TOD) deed. URPTODA establishes the requirements for the creation and revocation of a TOD deed and clarifies the effect of the TOD deed on all parties while the transferor is living and after the transferor dies, the title passes directly
to the named beneficiary without probate.
Some requirements include:
- The TOD deed must state that the transfer to the beneficiary occurs on the transferor’s death and must be properly recorded during the transferor’s lifetime in the office of the recorder of deeds where the property is located.
- A TOD deed does not operate until the transferor’s death and remains revocable until then.
- Until the transferor’s death, a recorded TOD deed has no effect—it does not affect any right or interest of the transferor or any other person in the property. “
For more information on TOD, click here. Remember it is best to discuss your title inheritance situation with a real estate attorney.