Every attorney knows that he/she isn’t the most popular of professionals. Do you know of anyone who goes to see their attorney to say hello? No, attorneys are usually consulted in a moment of need and often only after all options have been exhausted.
By the same token, most people don’t relish the idea of going to court. Court processes are exhausting and slow (including probate court). Therefore, many people seek to avoid probate, especially in regard to their homestead.
I recently received a call from someone whose niece, Jane*, had died just a few days before. She was an only child and lived in the home where her parents, Jack* & Jill*, had lived since they bought it just after World War II. Jack and Jill died several years before, but the caller didn’t believe that any probate had been done to put the home into Jane’s name.
Thanks to the Internet, I was able to search public records quickly and saw that, several years before Jill’s death, she executed a quit-claim deed. She was listed as the grantor, the person giving away the property, and both she and her daughter, Jane, were listed as the grantees, the persons receiving the property, e.g. “Jill to Jill and Jane.” This deed was done after her husband, Jack, had passed away. I’m sure the intent was to make it so after her death the property would pass immediately to her daughter without any need for probate. Great idea. Lousy document.
To achieve what she actually intended for, the granting phrase should have been, “Jill to Jill and Jane as Joint Tenants with Rights of Survivorship.” Without those additional words, the ownership created was one of tenants in common and Jill’s interest in the property stayed in the name of her estate after her death. Since it appeared Jane had done nothing to get the interest into her own name after her mother passed, I had to tell my caller that two probates would be necessary. The first probate would be to show the transfer of the mother’s interest to the daughter, then the second probate to show a transfer to the heirs of Jane, which included the caller’s wife, a few other aunts, and a slew of Jane’s cousins. Jill wanted to save some money, so she executed a do-it-yourself deed that gave her a false sense of security and actually could have caused her even more grief. If Jane had died before her mother, then Jill would have had to do probate proceedings to get the half of the property she gave to her daughter back into her own name.
If you’re thinking to yourself, “Remember to add those ‘Joint Tenants with Rights of Survivorship’ words to the next deed I do and I’ll be set,” let me assure you that there is much more to this than that one issue. When doing your own probate planning, make sure you consult with an attorney experienced in such matters so that your loved ones don’t face problems like these. Leave them with your assets; not a mess!
*All names (Jack, Jill & Jane) have been changed to protect identities.