When someone dies with real estate in multiple states, ordinarily each state decides how to handle the property within their borders. One cabin in each of three states may mean the family must navigate the probate laws of three separate states.
There are ways to minimize the time, expense and stress of out-of-state probate. You could buy vacation home s only in simple probate states, but there are smarter, more practical approaches.
A property’s state decides the property’s probate
Some states make probate as simple as possible for the heirs of out-of-staters who pass away with property within their borders (known as ancillary probate).
In some states, a person must only show that the deceased’s home state appointed them the estate administrator (or executor). They can then do business on the deceased’s behalf, including sell their real estate.
Delaware is not one of those states. Determining whether you can qualify to act as an administrator, proving that you are the deceased’s administrator and determining whether you need to obtain a surety bond are some of the steps required to even begin.
If someone you know has passed away with property or other assets in Delaware, strongly consider contacting Delaware attorney with extensive knowledge and experience with probate administration.
Steps to take now to avoid ancillary probate later
The complete list of your options will primarily depend on the location of the property and the state laws there. However, there will always be options that will minimize complications for transferring ownership without (or with greatly simplified) probate. The secret, however, is that the property owner must do them now, which they are still alive.
In most states, transfer on death deeds for property
Over half the states in America allow an owner of real estate to create a deed that passes ownership to real estate to another person, but only when the current owner dies. Until death, the current owner has all the rights and responsibilities of any other owner. Upon death, the transferee has those rights and responsibilities.
Although Delaware allows them for certain other types of assets, the state does not permit transfer on death (TODs) for deeds to real estate in Delaware.
Making the property part of a trust
You might transfer the title of the property to a living trust, for which you name yourself the trustee controlling the trust’s assets. When you pass away, the trust controls succession, or who becomes the next trustee, and the trust’s assets go to the beneficiaries without passing through probate.
Among many other potential advantages to this strategy, you can use the trust for nearly anything you own, including your primary residence, cars, cash and much more.
Joint tenancy creates other owners
Joint tenancy avoids probate by simply making the real estate the property of more than one person. When one owner dies, the surviving owners can have the “right of survivorship,” immediately owning the property with no need for probate.
