Transfer of Property Rights By Will or Intestate Succession

Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

Every day real estate is transferred not by sale, but by reason of death. In this lesson, you'll learn about how real estate is transferred by a person's will or through intestate succession. A short quiz follows.

Transfer By Will

Nell recently died and her will is currently being probated. Probate is the court process where the validity of a deceased person's will is determined. A will is a legal instrument a person uses to convey her intent regarding how her property should be distributed upon death. Transfer of real estate by will is called a devise. And since Nell died with a valid will, we can say her mother died testate.

All the assets that Nell personally owned at death, including all her real estate, comprise Nell's probate estate. You should keep in mind that assets held in trust are not part of the probate estate because the deceased person doesn't hold legal title to trust property. Likewise, joint accounts and payable on death accounts are not part of the probate estate because ownership is automatically given to either the joint account holder or person designated on the payable on death account. Thus, if Nell held a piece of real estate as a joint tenant, the property would not be part of her probate estate because her title in it transferred to the other joint tenants immediately upon death.

Veronica is Nell's daughter and was designated in her will to be the executor of Nell's probate estate. In some states, the person that fills the role of an executor is called the personal representative. As executor of her mother's estate, Veronica is responsible for gathering the probate assets, keeping them safe and managing them until each asset can be distributed to the heirs designated in Nell's will under the supervision of the probate court. An heir is a person who is entitled to receive a distribution of a deceased person's property either pursuant to the will or by operation of law.

Nell's will designates that all her real estate should be distributed to Veronica, Carl and Howard, her children, in equal shares. So how will Veronica transfer the real estate to herself and her siblings? She'll deed to the property to herself and her brothers with an executor's deed.

The required elements of an executor's deed may vary from state to state. Generally, an executor's deed will identify the executor, recite that the executor is executing the deed in her capacity as executor, provide the legal description of the property and be signed by the executor. An executor's deed will also identify the deceased person (e.g., Nell), the fact that the will is undergoing probate, and that the deed is being executed according the terms of the will. Many states require that an executor's deed be witnessed and notarized.

Transfer By Intestate Succession

Willard died without a will, which means he has died intestate. Each state has a set of statutes that determine who gets what when someone dies without a will. Receiving property pursuant to these statutes is known as intestate succession. The court will appoint a person to serve as an administrator; this person is usually the closest available willing relative, such as Willard's surviving spouse or child if there isn't a surviving spouse. Intestate succession laws generally only allow married spouses, children (biological or adopted) and blood relatives to inherit.

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