One common way to avoid probate of real estate after the owner dies is to hold the title to the property in joint names with rights of survivor-ship with children or other beneficiaries. Adding the names of children and certain legal terms to a new deed for the property, and then recording it in the applicable public land records, will accomplish this. (Warning: Creating a joint tenancy with a non-spouse can result in serious tax consequences and exposure to risk. For more on that topic, read this blog.)
Many people believe that they do not need to pay an attorney to help them prepare and record deeds. Instead, they think that a deed form can simply be downloaded from the internet or obtained from a book, and that they can easily fill them out and record them. But deeds are in fact legal documents that must comply with state law in order to be valid.
How is a Defective Deed or an Invalid Deed Corrected?
If the problems with a deed are discovered before the owner dies, the problems can be taken care of by having the owner sign and record a “corrective deed” in the applicable public land records. This should only be done with the assistance of an attorney.
Unfortunately, many times the problems with a defective deed or an invalid deed are not discovered until after the owner dies. If this is the case, then the problems cannot be fixed with a corrective deed since the deceased owner is unable to sign it. Instead, the property will most likely need to be probated in order to fix the problems created by the improperly drafted deed. Aside from probate taking time and costing money for legal fees and court expenses, until the problems with the title are sorted out in probate court, heirs will not be able to sell the property. Or, worse yet, the property may be inherited by someone the owner had intended to disinherit when they prepared and recorded their own deed.
What Should You Do?
If you want to add your children or other beneficiaries to your deed in order to avoid probate, and you think you can save a few bucks by using a form you find on the internet or in a book, think again. Deeds are legal documents that have very specific requirements and are governed by different laws in each state (in other words, a deed that is valid in Arizona may not necessarily be valid in Utah).
If you want your home or other real estate to pass to your children or other beneficiaries without probate, then seek the advice of an attorney who is familiar with the probate and real estate laws of the state where your property is located. This will insure that the deed will be valid and your property will in fact avoid probate and pass to your intended heirs.