Share

Madison Wisconsin's Estate Planning Blog

Friday, May 7, 2021

Selling a Deceased Loved One’s Real Estate: Things You Need to Know

After the death of a loved one, such as a parent, there are a variety of tasks that must be handled to wrap up your loved one’s final affairs. Selling your deceased loved one’s real estate is one of the more daunting ones. But before you call a real estate agent, you should take some time to get familiar with and consider a few of the key issues as you work through this process.

Who Owns the Property?

The first task is to understand who is, in fact, the legal owner of the property. Many families are surprised to learn that their family member was not the legal owner of the house where the relative had lived for years. Perhaps the family member was renting all along or owned the home jointly with another relative or a friend.

How do you find out whether your loved one was the actual owner? You must locate and examine the last vesting deed for that property. “Vesting” means that the ownership has become genuine and legal. The deed (the legal document that creates ownership of the property) contains the information needed to determine ownership of the land. When someone takes title to property, the previous owner signs a deed. Then the deed is recorded with the regional government office, often called the recorder, that keeps track of land ownership. In most cases, a deed must be recorded before the land will vest in the new owner. If you cannot find a copy of the recorded deed among your loved one’s important papers, you may need to go to the city or county recorder’s office, a title company, or an attorney with experience in real property transactions to get help searching for the deed in the property records and determining whether your loved one owned the property.

Once you have located the recorded deed, you will see the type of legal ownership. Each type of ownership has different legal implications, so understanding the differences is crucial, and you should get help where you need it to take the necessary steps to sell or transfer ownership of the property.

Type of Ownership

What to Look For in the Deed

(Who Is the Grantee?)

Possible Next Steps

Owned by a trust

“Jane Doe, Trustee of the Jane Doe Living Trust dated MM/DD/YYYY”

or

“The John and Jane Doe Living Trust U/A. (Month, Day, Year)”

Locate the associated trust documentation and determine who is the successor trustee if Jane Doe is now deceased.

Individually owned

“John Doe”

or

“John Doe, a single man”

Depending on the state where the property is located, probate may be required to appoint a personal representative, executor, or administrator who can sell or transfer the land.

Joint tenancy with right of survivorship

“Jane Doe and Alice Brown, as joint tenants with rights of survivorship”

or

“John Doe and Jane Doe, as husband and wife”*

or

“John Doe and Jane Doe, as joint tenants”

 

*In many states, listing a couple on the deed as being married indicates a default form of joint ownership, often joint tenancy with right of survivorship or tenancy by the entirety. This varies by state.

Probate will probably not be necessary if the co-owner is living. Full ownership of the land automatically passes by law to the surviving joint tenant. Heirs of the deceased, or the beneficiaries of a will or trust, will not inherit any interest in land so titled.

 

The county recorder may require an affidavit of surviving joint tenant, along with a death certificate, to allow the land to be sold or transferred after the death of the first joint tenant.

Tenancy in common

“Alice Brown, James Cooper, and Andy Katz, as tenants in common”

or

“Alice Brown, James Cooper, and Andy Katz, as joint tenants”*

 

*In many states, if unmarried individuals own property as “joint tenants” without any additional language, it is assumed that the intent was for it to be owned as tenancy in common.

The family of the deceased tenant in common will probably need to file a probate case for a personal representative, executor, or administrator to be appointed by the court to sell or transfer the deceased’s interest in the land according to state law or the deceased’s will.

 

If one of the tenants in common is a trust, probate would likely not be required for the transfer of that interest.

Tenancy by the entirety

“John Doe and Jane Doe, tenants by the entirety”

or

“John Doe and Jane Doe, husband and wife”*

 

*In some states, title to real property held by a married couple is automatically held as tenants by the entirety.

This option is available only to married couples in some states. The surviving spouse automatically becomes full owner of the property upon the death of the other spouse. No probate will be required. The survivor may need to record a new deed or an affidavit of surviving tenant before the survivor can sell or otherwise transfer the property.

Community property

“John Doe and Jane Doe, husband and wife, as community property”

or

“John Doe and Jane Doe, husband and wife”*

or

“Jane Doe, a married woman”*

 

*If this language appears and the property is located in a community property state, there is a strong presumption that the property was intended to be owned as community property.

Usually, the surviving spouse of the deceased automatically inherits the deceased spouse’s interest in the property unless it was otherwise disposed of by the deceased spouse’s will or trust, so probate may not be necessary, but you may need to obtain a court order to transfer title to the spouse.

Miscellaneous

If you see other language that doesn’t quite fit any of the above examples, be aware that there are other forms of ownership such as life estates or tenancy in partnership that may use different wording and that can lead to a wide variety of legal results.

Contact an attorney, a title company, or other knowledgeable real estate professional to help you determine what your next steps should be.


Appraising the Property

It is a good idea to have the property appraised as soon as possible after your loved one’s death. An appraisal is beneficial for a variety of reasons:

  • If you sell the property to a family member or a friend, or even if you choose to purchase the property yourself, a professional appraisal will protect you as the trustee, personal representative, or executor should other heirs and beneficiaries claim that you sold the property in a self-dealing manner for less than full market value.
  • If you sell to an unrelated third-party purchaser, an appraisal will help you determine whether you are getting a fair price for the real estate and protect you from accepting low-ball offers. It will also protect you as the trustee, personal representative, or executor from claims that you are not acting in the best interests of the beneficiaries.
  • If your loved one’s estate could be subject to estate taxes, an appraisal will help you verify the value of the estate for tax purposes.
  • If you intend to sell the property later, an appraisal will help you determine the new tax basis of the property, established upon the death of the previous owner, so you can accurately calculate the capital gain or loss when you ultimately sell the property.
  • Documenting the proper value of the property can also help with obtaining insurance sufficient to cover any damage to the property while you are administering your loved one’s estate or trust.

Maintaining the Property

When you are handling the final affairs of a loved one, properly maintaining the property until it is ready to be sold is another important task. For instance, you must determine if the property still has a mortgage against it and whether there are sufficient funds in the estate or trust to continue making mortgage payments. If not, you could risk foreclosure, which can exponentially complicate your job. If funds are available, you should ensure that timely payments continue to be made.

In addition to maintaining any mortgage payments, you should also make sure that the property taxes and any other necessary payments such as water, electricity, natural gas, yard maintenance, security system, etc., are timely paid. With respect to phone, internet, and cable bills, you should determine whether those are necessary. Certain alarm systems require a phone line or internet connection to function properly.

A Seller’s Required Disclosures

Once you have listed the property for sale, you must be sure that you know what disclosures about the property the applicable laws and regulations require. In some states, you are required to disclose a variety of property conditions to potential buyers. Failing to do so can expose you to significant liability and even litigation in some cases. Some of the more common disclosures you should be aware of include

  • asbestos, mold, water damage, or lead;
  • mechanical or electrical problems or issues;
  • structural problems;
  • hauntings or deaths that occurred in the home, including natural deaths, murders, or suicides;
  • boundary disputes;
  • environmental and natural hazards, such as high radon levels, contaminated soil, electrical hazards, high water tables leading to frequent flooding, etc.; and
  • drug-related hazards, e.g., meth labs.

Check with your real estate agent or attorney to determine what disclosures are required under state law.

Selling the property of your loved one does not have to be overly complicated, and it can often be done very quickly and efficiently. Now that you are armed with the above information, you will be far better prepared to handle this important aspect of your loved one’s final affairs. If you need help, we welcome the opportunity to visit with you about your specific needs. Call us, a Madison Estate Planning Attorney, today.


Blog Categories

401(k)

AB Trust

ABLE Program

Abuse

Addiction

Adult Beneficiaries

Advancement of share

Agent

Aging

Alcohol abuse

Amendment of Trust

Annual exclusion

Annuity

Armed Service Personnel

Asset Protection

Attorney

Avoid Probate

Basis

Beneficiary

Beneficiary Designations

Birth

Business Succession

Buy-Sell Agreement

Capacity

Caregiver

Celebrity

Changes in life

Changes in tax law

Charitable Planning

Children

Cognitive Impairment

Community Property

Compensation

Conservatorship

Core Values

Corporate Trustee

Court

Creditor Protection

Creditors

Death

Debts

Decanting

Deed

Digital Estate Planning

Discretionary Trusts

Disinherit

Divorce

Divorce Protection

Documents

Driving

Drug abuse

Duress

Dynasty Trust

Dysfunctional Family

Education

Elder Law

Equal Division

Estate Planning

Executor

Fair Division

Family

Farming and Ranching

Fees

Fiduciary

Financial Power of Attorney

Flexibility

Fraud

Funding Your Trust

Funeral

Generational Planning

Gifting

Government Assistance

Grandchildren

GSST

Guardian

Guardianship

Health Care

Health Care Agent/Proxy

Health Savings Account

Heirlooms

Heirs

HIPAA

Holographic Will

House

Incapacity

Income Tax

Inheritance

Instruction

Insurance

Intent Letters

Internet

Inter-vivos Trusts

Intestacy

Inventory

IRA

Irrevocable Trusts

Joint Tenancy

Keepsakes

Kids

Law Firm

Lawsuits

Liability

Liability Insurance

Life Estate

Life Events

Life Insurance

Lifetime Planning

Lifetime QTIP

Lifetime QTIP Trust

Limited Liability Company

Living Probate

Living Trust

Living Will

LLC

Loans

Long-Term Care

Lottery Winnings

Marital Property

Marraige

Medicaid Planning

Meeting

Mental Illness

Minor Children

Money

Moving to/from a State

Myths

Newlyweds

NEWSLETTERS

Nursing Home

Oral Wills

Overseas Estate Planning

Parents

Partners

Payable on Death (POD)

Peace of Mind

Personal Property

Personal Representative

Pets

Physicians

Planning

Portibility

Power of Appointment

Power of Attorney

Predator Protection

Predators

Prenuptual Agreements

Privacy

Probate

Procrastination

Promises

Property

QTIP Trust

Remarraige

Rental Property

Restatement of Trust

Retirement Assets

Review

Revocable Trusts

Saving Money

Simultaneous Death

Special Needs Trusts

Spendthrift Tust

Spouse

Stand Alone Retirement Trust (SRT)

Storage of Documents

Storing Documents

Stress

Successor Trustee

Surgery

Tangible Personal Property Memorandum

Taxes

Testamentary Trusts

Theft

Timeshare

Title

Transfer of Assets

Transfer on Death (TOD)

Trust Administration

Trust Contest

Trust Funding

Trust Protector

Trustee

Trusts

Umbrella Insurance

Unborn Children

Unfinished Estate Plan

Update Planning

Vacation Poperty

Values

Will

Will Contests

Wishes

Year End Strategies

Young Families

Archived Posts

2021
July
June
May
April
March
February
January
2020
December
November
October
September
August
July
June
May
April
March
February
January
2019
December
November
October
September
August
July
Being Deployed? Here’s What You Need to Do
The Only Constant in Life is Change: When Circumstances Change, So Should Your Estate Plan
Beyond Wills and Trusts: 3 Documents Everyone Needs
Reconsider Outright Inheritances: How to Protect Your Heirs and Your Legacy from Bad Decisions and Outside Influences
Expand Your Cast to Prevent Chaos
Planning for Blended Families: Second or Later Marriages and Divorce of Beneficiaries
The Flexible Protection of Trust-Based Planning
Why “I Love You” Wills Really Don’t Say “I Love You”
Estate Plans for College Students and Other Young Adults: Why It’s the Perfect Time to Set Your Kids Up for Success
Your Guide to Better Incapacity Protection in Your Estate Plan
Are You Familiar With Community Property Trusts?: Learn How These Special Trusts Can Help Reduce Income Taxes
Modernizing an Outdated Estate Plan: What to do with a Confusing, Old Trust
Have You Considered a Dynasty Trust for Your Family’s Estate? Why You Should Think Twice Before Ruling One Out
What if you don’t die?: Why Ignoring the Importance of Incapacity Planning Can Have Serious Consequences
Don’t Put Off Till Tomorrow What You Can Do Today: Why It’s Time to Talk with Your Family and Your Estate Planning Attorney
Who Will Inherit Your Financial Wisdom?: Passing on More Than Just Wealth
How Tax Reform Will Impact You and Your Estate Planning
Will My Debt Outlive Me?: Your Questions About Debt After Death Answered
Planning Your Summer Vacation?: 5 Things to Consider Now
Talk to Your Family over the Holidays about Your Estate Plan
12 Crucial Insights for Protecting Your Furry Family Members
Does Your Family Know About Your Estate Plan?: A Guide for How Much to Share and With Whom
Planning for the Financial Future of a Troubled Adult Child: Your 3-Step Guide to Creating an Informed Estate Plan
Keeping the Peace After You Are Gone: Planning With an Aim Towards Building Unity
Have You Taken Advantage of the Tax Cuts and Jobs Act Planning Window?: Important Estate Planning Tips You Should Act on Now
Back-To-School Preparation: Not Just About the School Supplies- Use This Time to Revisit The Parts of Your Estate Plan That Impact Your Children Most
What Do the New 199A Regulations Mean for You?: New Choices and Opportunities for Tax Savings
Three Legal Strategies When Facing a Major Health Event: What You and Your Family Need to Know
How to Protect Your Retirement Account
2018 Midterm Elections: What Do They Mean For Your Estate Plan?: Strategic Planning Guidance in Light of the Midterm Results
Estate Planning Projects to Tackle in the New Year
Three Liability Planning Tips for Physicians You Can Use Too
June
3 Estate Planning Secrets the Wealthy Use That You Can Too!: Strategies to Enhance Your Success
Five Key Considerations for Your Estate Plan
Your Personal Property Memorandum: 4 Tips for Success
How to Coordinate Your Retirement and Estate Plans
How to Avoid a Disastrous Will or Trust Contest
Is Your Estate Plan Probate-Proof?
Want a Greater Sense of Purpose? Plan Your Legacy
What is Asset Protection and Do I Need It?
Caution: Your Traditional Asset Protection Plan Is Set Up to Fail
Your Vacation Checklist
Estate Plans for College Students and Other Young Adults: Why It’s the Perfect Time to Set Your Kids Up for Success
Does Your Estate Plan Protect Your Adult Beneficiaries?
Discretionary Trusts – How to Protect Your Beneficiaries from Bad Decisions and Outside Influences
Estate Planning Is Not Just About Money
Is Your Estate Plan Unfinished? Don’t Wait to Complete This Important Process!
When Equal Is Not Necessarily Fair
Lifetime QTIP Trusts – The Gift That Keeps Giving
One Year After the Historic 2016 Election: Strategic Estate Planning in Uncertain Times
Funding Your Revocable Living Trust to Avoid Probate
4 Tips for Avoiding a Will or Trust Contest
The Harmonious Family that Won't Fight
3 Asset Protection Tips You Can Use Now
Estate Planning for Rental Property Owners
Estate Planning is More Than Just Death Planning
The Trust Protection Myth: Your Revocable Trust Protects Against Lawsuits
Loan, Gift, or Advancement: Why the Classification Matters
What to Bring to Your First Meeting with the Estate Planning Attorney
April
March
February
January
2018
September
August
July
Not Married? You’re not alone - but you still need a plan. Estate Planning for People Living Together, Bachelors, and Bachelorettes
Are Your Documents Following the Same Script? Basics of Beneficiary Forms and Estate Planning
A Trust for Fluffy or Fido? Why Every Pet Parent Needs to Consider a Pet Trust Today
Roth IRA Conversions After Tax Reform...Still a good idea? What are the implications for your family if you don’t spend all the money?
Estate Planning When Not All of Your Kids are in the Family Business
Beneficiary Designations and a Blended Family: Why You Need to Think Before You Sign
The One Thing Every New Grandparent MUST Do As Soon as Possible
How to Fix 5 Common Estate Planning Problems
How to Leave Your Life Insurance and Retirement Plan to Your Minor Children
Financial Planning. Tax Planning. Legacy Planning. Estate Planning - How many plans do I need?!
Why Not Just Go on NoloⓇ and Create Your Own Estate Planning Documents Cheaply?
3 Things You Must Do Once Your Divorce Is Final
Protecting Your Children’s Inheritance When You are Divorced
Finding the Right Fit: Questions For Prospective Wills and Trusts Attorneys
The Biggest Threat to Successful Estate Planning
Steps For Starting the End-of-Life Conversation
Joint Tenancy Pitfalls: The ‘Simple’ Fix that Can Leave Your Family Broke
One Call You Must Make After You Buy a Home-That You’ve Probably Forgotten
3 Tips For Every New Homeowner
Declare your Independence from Court Interference!
What To Do With Your Beloved Collection
Legal Considerations When Getting Your New College Student Ready to Go
Digital Afterlife- An Estate Plan For Your Facebook Account
How an Estate Planning Letter of Intent Can Help Your Family
Kids and Investors Are Not the Only Options
Retirement Planning for Business Owners
Passing Along a Benefit, Not a Burden - Why Incapacity Planning for Business Owners is an Indispensable Component of Your Plan
March
February
2017
September
August
July
May
April
Updating Your Revocable Trust: How Many “Tweaks” Are Too Many?
U.S. Supreme Court Rules Inherited IRAs are Not Protected from Creditors
4 Tips for Avoiding a Will or Trust Contest
Three Liability Planning Tips for Physicians Anyone Can Use
Three Estate Planning Mistakes Farmers and Ranchers Make and How to Avoid Them
The Wrong Successor Trustee Can Derail Your Final Wishes
The Trust Protection Myth: Your Revocable Trust Protects Against Lawsuits
The Tragic Loss of Star Trek’s Anton Yelchin: Lessons for Estate and Legacy Planning
The Three-Year Review and The Three-Year Plan
The Shocking Truth About Asset Protection Planning
The Pros and Cons of Probate
The Perils of Promises...Marlon Brando’s Story
The Lifetime QTIP Trust: Or (How to Maintain Control of Your Estate and Keep Spouse No. 2 Happy)
The Lifetime QTIP Trust: Or (How to Maintain Control of Your Estate and Keep Spouse No. 2 Happy)
The IRS Took Half of Tony Soprano’s Estate: Don’t Fall into the Same Trap!
The Essential Legal Documents You Need for Incapacity Planning
Surprise! You Can’t Easily Disinherit Your Spouse in the U.S.
Stress Test Your Estate Plan
Sonny Bono’s Procrastination in Creating a Will Led to Years of Estate Battles
Skyrocketing Probate Fees – Another Reason to Avoid Probate Court
Revocable Trust vs. Irrevocable Trust: Which Is Best for You?
Prince’s Sad and Incredibly Expensive Mistake! (Are You Making It, Too?)
3 Powers to Consider Giving to a Trust Protector
Philip Seymour Hoffman’s Will: 3 Critical Mistakes
Parental Warning: If You Own Your Property this Way, You May Accidentally Disinherit Your Own Children
Over 70% of Elvis Presley’s Estate Paid in Taxes & Fees: How Can You Avoid the Same Trap?
Nosey Neighbor Nellie Can Find Out About Your Probate. Really.
Michael Jackson’s Estate Pulled into Seemingly Endless Probate Court Battles
Lifetime QTIP Trusts – The Gift That Keeps Giving
Is Your Estate Plan as Stale as Last Week’s Ham Sandwich? 5 Reasons to Update Your Estate Plan
March
Is a Revocable Living Trust Right for You?
Is a Payable on Death Account Right for You and Your Family?
Irrevocable Trust Decanting in 4 Steps
IRS Announcement: Estate Tax Closing Letters Will Now Only Be Issued Upon Request
Investment, Insurance, Annuity, and Retirement Planning Considerations
If You Die Without a Will, Does Your Spouse Inherit Your Entire Estate?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
How to Minimize the (Voluntary) Federal Estate Tax with Portability
How to Minimize Legal Fees After Death
HELP! This Probate Is Taking Forever!!!
Four Steps to Stop Mail Addressed to a Deceased Person
Five Things You Need to Know About the Recently ABLE Act
Flo Jo’s Tragic Mistake: A Missing Will
5 Reasons Why Uncle Bill May Not Make a Good Trustee
Financial Firms Roll Out Form Aimed at Stopping Financial Elder Abuse
5 Reasons to Embrace Estate Planning
Estate Planning: 3 Reasons We Run the Other Way
Estate Planning Basics for Newlyweds – How to Get Prepared for the Unexpected
Escape From a Bad Trust: 5 Strong Reasons to Decant Your Trust
Doris Duke’s Trustee Bilked Estate for $1M: How Well Do You Know Yours?
Don’t Leave Your Trust Unguarded: 6 Key Ways a Trust Protector Can Help You
Does Your Estate Plan Protect Your Adult Beneficiaries?
Who’s Going to Get It: Do You Really Know the Beneficiaries of Your Dynasty Trust?
Dispelling the Top 3 Estate Planning Myths
Discretionary Trusts – How to Protect Your Beneficiaries From Bad Decisions and Outside Influences
Did you include your grandkids in your will? 5 Tips to Avoid Common Problems
Did Whitney Houston Leave Too Much Money To Bobbi Kristina?
Dennis Hopper Saves Heirs with Last Minute Estate Plan Changes
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Avoiding Guardianship When you are Incapacitated
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Who Should I Choose as a Successor Trustee
Celebrities Who Failed To Recognize Unborn Children in Their Wills: A Teachable Lesson
February
Caution: Your Traditional Asset Protection Plan is Set Up to Fail
How to Choose a Trustee
Name a Guardian for Your Child
Caution: Creditors Now Have Easy Access to Inherited IRAs
Big Bang Theory Star’s “Ironclad” Prenup Challenged: How Does Yours Compare?
Will Your Family Be Able to Find Your Original Last Will?
Ways to Avoid Court Proceedings
Are Handwritten Intentions Enforceable? Princess Diana Thought So…
An Estate Planning Checklist to Facilitate Wealth Transfer
Aging.gov: A New Resource for Older Americans and Their Families
AB Trusts – Do You Need to Get Rid of Yours?
A Powerful Exercise to Surface the Values You Want to Pass on to the Next Generation
10 Types of Trusts: A Quick Look
5 Tragic Mistakes People Make When Leaving Assets to Their Pets
5 Things Every New Mother Needs to Know About Wills
New Legislation Could Mean the End of Estate and GSTT Taxes What This Means for You and Your Family
5 Reasons to Protect Your Retirement Accounts Now
5 Mistakes Made by Successor Trustees (and How to Prevent Them)
5 Good Reasons to Decant a Trust
3 Ways to Minimize Estate Planning Fees
3 Tips for Overwhelmed Executors
3 Simple Ways to Avoid Probate Costs
3 Reasons You Want to Avoid Probate
Who Needs an Estate Plan?
AB Trusts – Do You Need to Get Rid of Yours?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
Better to Play it Safe: Proactive Estate Planning and Cognitive Impairment
Will Your Revocable Living Trust Avoid Probate? It Depends.
Why Your Estate Planning Project Must Morph into a Process
Estate Planning Tips for Commitment Without Marraige
3 Celebrity Probate Disasters and Tragic Lessons
3 Examples of When an Irrevocable Trust Can – and Should – Be Modified
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
2013
2012


Nennig Law Offices, LLC assists clients in Madison, WI and throughout Southern Wisconsin including Verona, Middleton, Sun Prairie, Cross Plains,Sauk City, Belleville, Waunakee, Mount Horeb, Oregon, Black Earth, DeForest,Monona, McFarland, Stoughton, Cambridge, Deerfield and Fitchburg.



© 2021 Nennig Law Offices, LLC
6418 Normandy Ln, Ste 225, Madison, WI 53719
| Phone: 608-661-4333

Estate Planning | Asset Protection | Business Succession Planning | Special Needs Planning | Planning for Children | Advanced Estate Planning | Probate & Estate Administration | Estate Planning for High Net Worth Individuals | Estate Planning with Wills | Trusts & Estate Planning | Estate Planning for Non-Traditional Families | Estate Tax Planning | Estate Litigation | Guardianships | Pet Trusts | COVD-19 | Who We Are | Becoming A Client

Attorney Website Design By
Zola Creative