For many Americans, their home is the largest and most valuable asset they own. Understandably, there is concern about what will happen to their real estate upon their death. To avoid leaving it up to family members or probate to decide, this should be outlined in an estate plan.
There are two legal instruments used to transfer real estate in the event of the property owner’s death: Survivorship Deed and Transfer-On-Death Designation Affidavit.
A Survivorship Deed is used to assign the real estate title to one or more persons with right of survivorship. The property, upon the owner’s death, passes to the surviving owner(s). This instrument is commonly used to transfer the property to the surviving spouse. In order to complete the transfer of ownership, the surviving spouse must administer an Affidavit of Survivorship. This affidavit, along with the death certificate of the deceased, is then recorded at the County Recorder’s Office to make the document transfer official.
The Transfer-On-Death Designation Affidavit allows the real estate owner to appoint one or more beneficiaries of the property while avoiding probate administration. The designated beneficiaries do not have legal rights to the property while the owner is living. Additionally, the owner may transfer, amend, or revoke the affidavit without the consent of the beneficiaries. When the owner passes away, the property is then transferred to the designated beneficiaries. The beneficiaries only need to execute an Affidavit of Confirmation. To finalize the property transfer, the affidavit and the deceased’s death certificate is recorded with the County Recorder’s Office.
Prior to drafting a survivorship deed or assigning beneficiaries under a transfer on death affidavit, weigh the pros and cons of sharing your largest asset with one or more persons. If you have questions or are involved in a complex situation, contact an attorney.
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