After someone dies, the family and close relatives must settle her estate. This involves distributing assets, which often includes transferring title to the decedent’s house or other real property. The executor, or personal representative, handles the administrative duties and must notify the creditors and beneficiaries of the deceased and generally work with the probate court to facilitate the distribution of the estate.
Letters Testamentary
An executor must have authority to act in his capacity. The first step when probating an estate is to file the proper forms and motions with the probate court. The court issues letters testamentary to the executor, which grant him authority to act in that capacity. Letters testamentary allow the executor to stand in the place of the deceased for matters such as filing taxes and transferring title to the deceased’s assets.
Transferring Title
State probate laws vary with regard to how an executor may transfer title to a home to the beneficiaries. The executor may need to draw up a new deed naming the beneficiaries as the “grantees,” or new owners. A new deed is not always required. In California, for example, the executor needs to file certain notices with the tax assessor in the county where the property is located. Forms include a death notice, a preliminary change of ownership report and a copy of the death certificate.
Timeline
Transferring title generally occurs on the back-end of probate. Prior to distributing assets, the executor must complete other tasks, such as an inventory of the deceased estate. Additionally, the executor must pay all valid claims of the estate. Depending on the size and nature of the deceased’s estate, the process could take several months to complete.
Other Issues
Other rules may govern the transfer of property. For example, the land may transfer by operation of law if the deed is a transfer on death deed naming the siblings as the beneficiaries. If the title transfers by operation of law, the executor does not need to do anything. The deceased's estate plan may also control who gets the property. If the deceased died without a will, for example, the state’s intestate succession laws mandate who gets title the property – typically, it goes to the surviving spouse. Readers should seek independent legal advice before proceeding.
References
- Judicial Council of California. "Wills, Estates, and Probate - What Is 'Probate'?" Accessed April 27, 2020.
- Mergen Law LLP. "Definition: Executor and Executrix." Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "What if There Is No Will?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "How Long Does Probate Take?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "Does the Court Supervise the Personal Representative?" Accessed April 27, 2020.
- Office of the Executive Secretary, Supreme Court of Virginia. "Probate in Virginia - What Are the Basic Duties of an Executor or Administrator?," Pages 4-5. Accessed April 27, 2020.
- New York State Unified Court System. "Probate." Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "When Can a Will Be Contested?" Accessed April 27, 2020.
- Judicial Council of California. "Wills, Estates, and Probate - Step 1: Figure Out Who Will Be the Estate Representative." Accessed April 27, 2020.
- California Legislative Information. "Probate Code §8461."Accessed April 27, 2020.
- Alaska Court System. "Letters of Administration and Letters Testamentary." Accessed April 27, 2020.
- Alaska Court System. "Are Individuals and Businesses Protected if They Deal With the Personal Representative?" Accessed April 27, 2020.
- Alaska Court System. "How Do I Find Property Owned by the Person Who Died?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "What Does the Personal Representative Do?" Accessed April 27, 2020.
- Alaska Court System. "How Do I Manage Financial Accounts and Cash?" Accessed April 27, 2020.
- Alaska Court System. "Inventory of Property, P-370." Accessed April 27, 2020.
- Alaska Court System. "What Is the 'Information to Heirs and Devisees?'" Accessed April 27, 2020.
- Judicial Council of California. "Wills, Estates, and Probate - Step 2. As Estate Representative, Start Gathering Information and Fulfilling Your Duties." Accessed April 27, 2020.
- Federal Trade Commission. "Debts and Deceased Relatives." Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "How Do Creditors Get Paid?" Accessed April 27, 2020.
- Alaska Court System. "How Do I Reject a Claim?" Accessed April 27, 2020.
- Alaska Court System. "What Happens After I Send the Notice of Disallowance?" Accessed April 27, 2020.
- Tennessee Department of Revenue. "Tennessee Inheritance Tax Guide," Page 6. Accessed April 27, 2020.
- Legal Information Institute. "26 U.S. Code § 2032. Alternate Valuation." Accessed April 27, 2020.
- Internal Revenue Service. "Estate Tax." Accessed April 27, 2020.
- Tax Foundation. "Does Your State Have an Estate or Inheritance Tax?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "How Are Taxes Handled in Probate?" Accessed April 27, 2020.
- Alaska Court System. "Do I Have to File a Federal Income Tax Return for the Person Who Died?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "What Must I Do to Close the Estate?" Accessed April 27, 2020.
- Alaska Court System. "Does the Personal Representative Have the Right to Be Paid?" Accessed April 27, 2020.
- Superior Court of California, County of Santa Clara. "If I Serve as Executor, Will I Get Paid?" Accessed April 27, 2020.
Writer Bio
Based in Traverse City, Mich., George Lawrence has been writing professionally since 2009. His work primarily appears on various websites. An avid outdoorsman, Lawrence holds Bachelor of Arts degrees in both criminal justice and English from Michigan State University, as well as a Juris Doctor from the Thomas M. Cooley Law School, where he graduated with honors.