Stautz Law

Tag: Probate Administration

  • Choice of Venue for Indiana Probate

    Video

    Transcript

    (Auto-Generated)

    Good morning, folks. It’s Andy Stautz with Stautz Law, and I am back today with a talk about an Indiana probate topic. This one’s very Indiana-specific, and it’s about venue for a probate estate.  

    Now, this probably isn’t something a lot of my clients are necessarily thinking about to begin with. But I think it’s important from a legal perspective and it’s kind of an interesting side note.  

    Probate Code Venue Provision: Domicile of Decedent

    So the Indiana Probate Code has a venue provision. Venue is just where are we going to do this, right? Where are we going to have our probate estate?  

    Indiana Code 29-1-7-1 is a venue provision and it says venue for a probate is the home county of the person who died. So the decedent, that’s the person who died, their domicile. Okay, that makes sense, right?  

    Especially because this law is really old. So like back in the 19th century, you know, Farmer Bob dies, like, yeah, you go to the county courthouse where Farmer Bob’s farm is. That’s the best place to probate his estate. So that the venue provision in the probate code says, home county. Easy enough.  

    Probate in a Different County?

    Sometimes though, it might be convenient for the heirs and beneficiaries or the lawyer or who knows, who knows why. There might be reasons to prefer a different venue than the county of the decedent’s domicile.  

    And the nice thing is, there’s a trial rule that lets you do that.  

    Indiana Trial Rule 75, “Venue,” says, you know, Part A, 75(A):,venue lies in any of these places. And it gives you a list of kind of like things to consider. And some of those are, you know, the convenience of the people involved, you know, being close to the spot, if that matters.  

    And it’s interesting because, okay, now you’ve got two venue statutes. Where do you… which governs? Well, Trial Rule 75(D) says this rule, the permissive venue rule, 75(A), overrides any other venue statute out there. So I think the correct view on this now is you can file a probate estate in any county in Indiana for an Indiana decedent.  

    Every Indiana court has jurisdiction, has general jurisdiction over, you know, everybody in the state. So you’ve got jurisdiction [and] you’ve got venue.  

    Choosing where to Open Probate Estate

    So really probate venue becomes a question of where do you want it to be? And in the vast majority of cases, that is still going to be the decedent’s county of domicile. Um, but, but you know, if, If there’s an outlying county, the decedent lived far away and all of his or her surviving family members are in a different county. Maybe you file where the survivors are… or, you know, any number of other reasons. You’ve got that flexibility now.  

    So that’s kind of an overview of what the rule is, what you’re allowed to do. And it’s going to ultimately be a case-by-case determination. So, if you’re my client, I’m going to talk to you about, okay, what county should this be in? It’s definitely something to talk to counsel about because different courts in the state are different. And if you’re going to be going there for petitions, for hearings, you know, you want it to be the best place.  

    So it’s one more thing to think about as you’re considering how your state administration is going to go. I hope that information has been useful.  

    I help with probate estates throughout Indiana, though predominantly here in central Indiana, Marion County, Johnson County, Shelby County, Montgomery County, you know, just kind of this area and familiar with all of those courts and If you’ve got a case in one of them or you think you might need one, my contact information is here. So give me a call and we can talk about your specific case. Hope the general information has been useful and that’s all for today. Bye now.

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Transfer on Death Deeds: Partial Interests

    Video

    Transcript

    (Auto-Generated)

    Good morning, folks. It’s Andy Stautz with Stautz Law. I’m back today with another talk about an Indiana estate planning and probate topic. Today we’re talking about transfer on death deeds of partial interests, by which I mean also joint tenancies.

    Overview of Transfer on Death Deeds

    So I’ve talked before about Indiana transfer on death deeds, You should go look at that video if you haven’t seen it yet. Basically, a transfer on death deed is an instrument, a deed that you record on top of your existing house deed or property deed, and it adds an automatic beneficiary to your deed. That way, on your passing, there’s a non-probate transfer: which means it’s automatic, it happens right away. You don’t need to go to probate court.  

    Automatic non-probate transfer of the property from you to whoever you named.  

    (But it doesn’t create any, you know, present ownership in your beneficiary, right? So they can’t do anything about it. You just put the name on there.)  

    Scenarios with Partial Ownership Interests

    Okay, so that fundamental instrument is great. The most common scenario is definitely people who own their house and are giving it to either their kids or a family member. And usually people own their real estate fee simple outright. They just, they own it, it’s theirs.  

    Sometimes though, you see properties, especially family properties that have been passed down, or business properties that were acquired as part of a group of investors, where you’ve got a partial interest, some sort of joint tenancy. And again, I’ve got a separate, more extensive discussion of how joint tenancies work.  

    Transfer on Death Deeds and Partial Interests

    But you know, if you’ve got a one quarter share in a property, you know, or you’ve got a joint tenancy with someone else, Can you still use a transfer on death deed?  

    The answer is yes, you can use a transfer on death deed for partial interests, just like you can for like a complete fee simple interest, and the rules for that are right in the transfer. on Death Property Act. So that’s Indiana Code 32-17-14-11(e), [edit: I misspoke, it’s subsection “e” not “a”] and then it’s a list of one, two, three, four, five, six of what happens in different situations. So you can go look at the law for yourself.  

    I think the interesting ones are a tenancy in common. That’s where you just own some fraction. If you put a transfer on death deed on your fraction, it’s just it operates as to your interest. I.C. 32-17-14-11(e)(4). So if you own a quarter of your property, you can put a transfer on death deed for your quarter of the property. Doesn’t affect anyone else.  

    With husbands and wives, spouses who have this special “tenants by the entirety,” you can’t do it unless both spouses join. I.C. 32-17-14-11(e)(1). So you can’t just decide one day to add a beneficiary designation for like you, the husband’s beneficiaries or whatever, both spouses have to agree.  

    But the rules is different for a joint tenancy that’s not spouses. It’s for a joint tenancy, which often includes this right of survivorship, pretty cool if you’re the survivor, I suppose, recording a transfer on death deed breaks the joint tenancy and turns it into a tenancy in common. I.C. 32-17-14-11(e)(2). So you lose the right of survivorship. That’s quite a little trick in the law there.  

    It’s never come up for me yet, but I’m young. Maybe it will someday. So be careful and look at it.  

    Conclusion: TOD Still an Option

    But just because you own some fractional interest in a property doesn’t mean transfer on death deeds are off the table. And that’s good because they’re a really flexible planning tool. I’ve talked elsewhere about how and when you might want to use them, but the type of tenancy you have doesn’t necessarily stand in your way.  

    So if you want to talk about this or any other Indiana estate planning and probate topic, give me a call or e-mail. You’re on my website. You’ve got my contact information and I serve, you know, central Indiana and especially points south, so Indianapolis, Marion County. Greenwood, Johnson County, Montgomery County, all of that, Shelbyville. So give me a call and we can talk more, but I hope this general information of Indiana law was useful to you. Bye now.

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Probate Administration: The Estate Bank Account

    Video

    Transcript

    (Auto-Generated)

    Good morning. It’s Andy Stautz at Stautz Law, and I am back today for another talk about a probate and estate administration topic. Today’s topic is the estate bank account.  

    When Do You Need an Estate Bank Account?

    Now, this is one of the things that a personal representative, (also called an executor, if you’re more familiar with that term), needs to do right at the beginning of an estate administration. So, you know, you petition the court to open an estate for the person who’s died. If the court approves that petition, they’ll grant it, they’ll issue the letters of administration, congratulations, now you’ve got a personal representative with an open estate, and the personal representative has these letters of administration. And that means it’s time to gather estate property.  

    Well, where do you put it once you have it?  

    And the answer is you have an estate bank account, which is separate from the personal representative’s personal accounts and separate from the decedent’s bank accounts, right?  

    The Estate as a Separate Entity

    This bank account is going to be just for the estate itself, which is like a separate entity. It’s like its own company for the duration of the estate administration. So you need a separate account so that you can keep track of what comes in and what goes out and so that the accounting can be separate so that you can show to the other beneficiaries, to the court if necessary, how the personal representative has handled the estate property.  

    I always give my personal representative clients an instruction sheet to take to the bank when they go to open this estate bank account. And probably the most important two items are, one, it’s a separate account. I keep harping on this, but that’s because it matters. 

    EINs for Estates

    We want an account that’s just for the estate. And to do that, the estate needs an identity, right? It’s not the personal representative, it’s not the decedent, so you have to get your own ID number. And that is an employer identification number, an EIN, which is obviously usually for companies, usually for businesses, but it’s the same type of ID number that the IRS federal tax authority uses for estates. So the personal representative has to go apply for an EIN for the estate, and then they’ll take that EIN to the bank to show that the estate is a separate entity that can have its own account.  

    So I provide instructions to my clients on how to request an EIN. It’s really easy and it’s online these days. Sometimes I apply for an EIN for the estate on the personal representative’s behalf, but you need a separate authorization sheet, right? Not just anyone can go around willy-nilly applying for other people for these tax IDs.  

    Conclusion: Putting It All Together

    But that’s kind of the process: Right at the start, your estate, you’re spinning it up, you’re kind of starting administration. You need a place to put the estate property as you gather it, so the personal representative gets an EIN, goes to the bank, opens an estate bank account, and then that lasts for the duration of the administration.  

    And like I said, I give all my clients an instruction sheet on this because, you know, it’s kind of the first item of business.  

    So that’s all I’ve got for today on this topic. I think I’ll probably talk more about accountings and inventories later. This was just kind of a what you need to know about this particular step in Indiana state administration. So you’re on my website, obviously. The end card will have my contact information. Give me a call or e-mail me if you’ve got questions about this or you want to work with me on this or any other matter. Hope this informational talk’s been useful and bye for now. 

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Fixing Bad Wills

    Video

    Transcript

    (Auto-Generated)

    Good morning, folks. It’s attorney Andy Stautz at Stautz Law. I do Indiana probate and estate planning, and today we’re talking about fixing DIY wills or bad wills.  

    So our last video, which I just did, you know, 10 minutes ago, I was talking about how DIY wills go bad. You know, I said, Look, I’ve been seeing a bunch of probate estates where the family says, you know, here I’ve got this will and it’s a disaster, right? Like it’s not signed properly, it’s invalid, whatever.  

    Can you fix it?  

    Ounce of Prevention Worth a Pound of Cure

    So, start with the start. The best way to fix a DIY will or a bad will is to, while the person is alive, go get a new one written, by a professional, right? It’s way easier to fix problems before you die.  

    But let’s assume it’s too late, okay? The person passed, all that’s left is this handwritten will or bad will, you know, improperly executed will.  

    What can we do?

    Possible Solution #1: Family Settlement Agreement

    The easiest fix is a is a family settlement agreement, which is kind of a nickname for a statutory procedure in the probate code. So that’s Title 29, and then Section 9, I think. I’ll cite it in the transcript. [Statute is here: Indiana Code 29-1-9]

    And basically it says, You’re allowed to come to an agreement to compromise a controversy about the effect of a will. So you can use a settlement agreement that’s to say, we, the family members, we, the heirs, agree to treat this will as valid.

    Now, the problem with that is, or, you know, that’s great if you can do it, but it requires the consent of everybody involved. So everybody who would get something under no will and everyone who would get something under the new will, right? So if you’ve got a will leaving everything to Jerry, but the intestate heir is Sam, then, you know, Jerry can’t say, I agree to treat the will as valid, right? Sam and Jerry have to agree. Everybody’s got to agree. And that requires finding everybody, you know, making sure they’re okay with it.  

    So sometimes it’s possible, but sometimes it’s just not.  

    Possible Solution #2: Supervised Administration

    Another fix, if you can’t find everybody or everybody doesn’t agree, is to go for a supervised administration and then get a court order directing, you know, directing administration. So you can petition the court for a determination [These are in I.C. 29-1-6-5 and I.C. 29-1-6-6, for example] and say, you know, are we following this? Is this valid? You know, what should we do? It might not come out like you want, but that way at least you’ve got, you know, nobody gets in trouble for relying on a court order, right? Like it’s a great way to solve that.  

    Possible Solution #3: Disclaimers and Assignments

    And then finally, you know, you can do something similar to a family settlement agreement through disclaimers or assignments of interest, which are a little bit, are subtly different from each other, but both have the effect of someone giving up, right, their rights, either to an intestate share or under a will.  

    So sometimes you can use those to kind of either fix the will or achieve the same effect as the will intended, putative will intended. So, you know, if Oh, let’s say the intestate heirs are Sam and Jerry again, and the will leaves everything to Jerry. The invalid will leaves everything to Jerry. Well, if Sam says, you know, I give up my share, then Jerry gets everything. You know, that’s basically the same effect as the will by a roundabout way. But in all of these cases, right, we’re doing problem solving after the fact. We’re trying to make up in probate for what we could have done with, with proper planning ahead of time.  

    Recommendation: Do it Right and Avoid Problems

    Now I do both estate planning ahead of time, making the wills and probate after the fact. So for me personally, as a lawyer for my business, it doesn’t matter what you do, but I’m here to tell you doing the will right up front, you know, saves a lot of time and trouble. I don’t mind solving the problems later and it’s kind of fun. But it takes more work. It’s more expense to you and the other heirs.  

    So those are some ideas. There’s no legal advice here. That’s just kind of talking about what I’ve seen. If you need help with a problem, a probate problem, or fixing a will, call me. My contact information is on the end screen and you’re on my website. So take a look around and I look forward to working with you. Thanks. Bye.

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • What to Expect as Personal Representative

    Video

    Transcript

    (Auto-Generated)

    Good morning, folks. It’s Andy Stautz at Stautz Law. Today’s talk is really instructional, and this is going to be shared, I think, with my clients and prospective clients as kind of a how-to, and that is: what to expect when you’re named personal representative.  

    So If you’re watching this video, you’re probably either thinking about hiring me or you’ve just hired me to represent you as personal representative in a probate estate.  

    So what’s going to happen? Like how is this representation going to go?  

    Three Stages of Probate

    Well, there are basically 3 steps in administering a probate estate.

    The first step is kind of the initial filings, right? It’s getting everything around and petitioning the court to open the probate estate. That’s step one.  

    Step two is administering the estate. And that’s all the things we need to do to get the property passed on to the right people in the right way.  

    Step three is, you know, closing the estate in a final accounting distribution.  

    So in general, big picture, the personal representative is in charge of gathering the estate property that’s out there, administering it for the benefit of creditors and beneficiaries, and then providing a final accounting and distributing it.  

    1. Opening the Estate

    So the first steps, the busiest time is going to be right off the bat. I’m going to ask you for a bunch of documents, a death certificate is probably the single most important one, the will or other estate planning documents, if there were any, the names and contact information of you and all the other heirs and beneficiaries. Okay? Because we need to know, we need to know what we’re dealing with and we need to be able to tell the court, you know, here’s what’s involved. Here’s who you are. Here’s who’s concerned in this estate. And so those documents really help establish that and prepare those filings.  

    And you’ll need to sign a bunch of stuff, right? I routinely use e-signatures. You can come into the office too. But you need to say, yeah, I promise, judge, that, you know, I am who I say I am. I have an interest in this estate. These are the people, you know, you’re making a promise to do this the right way. And the court needs to see that.  

    2. Administering the Estate

    So that’s kind of the first step is opening the estate. If the court approves it, which, we do it right, they do, you need to begin administration.  

    This is step 2, the second big chunk. And this is where you need to do things like opening an estate bank account, right? Notifying, figuring out who might, have a creditor claim against the decedent, usually this is like utility bills, maybe an unpaid credit card, a mortgage company, find who they are.  

    Because the step 2 is really tell everybody concerned, hey, we’re administering this estate, make an estate bank account because it’s a separate entity, right? We’re putting all of the decedent’s property into this pot, the estate. And, you know, creditors can ask to have some, the beneficiaries ultimately, you know, get their shares. So that’s kind of step two. And step two takes at least three months because that’s the statute waiting period, right? The people who might have a claim get three months to come forward, which is, you know, pretty fair, right? They don’t need to be Johnny on the spot, but they also can’t just like wait forever. So the three months is like, okay, that’s what we need to do.  

    And administration sometimes is really easy. You know, if no creditors come forward, you know, if the property’s mostly just like a bank account and maybe a house without a mortgage, maybe you’re not really doing anything for three months. So it can be quiet or it could be really busy.  

    if there are lots of properties, there’s a business you have to keep running, if there’s a mortgage you have to keep paying, it can be busy.  

    3. Closing the Estate

    Finally, step three, which comes, you know, at the end of that three-month waiting period or later if there’s more work to be done. Step 3 is you know, closing out accounting and distributing the estate. So this is where you’re going to, you know, tally up the accounts, say, okay, which creditors are we paying? How much? You know, you pay expenses of administration. So my legal fees, court fees, if you pay, if you have to pay a realtor to sell a house, right? And then come creditor claims. So funeral expenses, utilities, the mortgage. So you pay all of those first, kind of off the top.  

    And then you say, okay, here’s what’s left. And it goes to, you know, equally three ways to the kids or, you know, to the beneficiaries designated in the will, you know, as the will says. And so that final accounting, we need to make sure we get it right. It’s a little bit of a process.  

    And then there’s a final statement you file with the court saying, here we did it. And in an unsupervised estate, that closes the estate on its own. In A supervised estate, you need a court approval, you know, saying, okay, you did it right. And then we close out and we’re done.  

    So that’s the big picture. When you’re the personal representative, you’re going through these three stages. You’re you know, getting the information around to open an estate. We’re doing those initial filings. We’re getting, you know, we’re getting the court permission to act. Stage two, we’re gathering estate property. We’re figuring out what needs to be paid and what needs to be done. Stage three, we are settling up. We are paying valid claims, paying expenses, and finally distributing the estate.  

    Timeline for a Simple Indiana Probate Estate

    And the whole process start to finish, right? we can get an estate filed in the first week, couple days, and then a week to issue letters and then three months of administration and then maybe a few weeks to finalize and close.  

    Conclusion

    So that’s the overview. That’s, kind of what to expect here. And so if you’re my client, I’m going to refer you to this video just to kind of just kind of have a roadmap in your head. And obviously, you know, there’s lots of guidance along the way. And the reason you hire me as your probate attorney is because, yeah, I’m there to answer questions for you and to walk you through, the details of those stages. This was an overview.  

    I hope it was instructional and reassuring. You know, we’ve done this before. It’s a very logical process once you understand it. So nothing to worry about. I look forward to working with you. And as always, my contact information is in the end card. It’s all over my website and you’ve got it already if you’re my client. Thanks, bye.

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Do You Actually Own the House?

    Video

    Transcript

    (Auto-Generated)

    House Title Issues in Probate

    Good morning, folks. It’s Andy Stautz at Stautz Law. I am a wills, trusts, and estates attorney, and today I’m talking about a common probate topic, which is, do you actually own the house?  

    It seems like it should be an easy one to answer, but this is probably the single most common problem I see that brings people in for a probate administration or that makes people realize they need to do something.  

    So, for real property, like houses, what matters is who has title, okay? And Title is a complicated system. It’s kept track of in these like property records, the land records of the county. So that’s the recorder’s office. And you’ll see it on property tax bills. And you’ll see it on, you know, a mortgage.  

    Property Title Isn’t Automatic

    What you need to realize is a lot of this isn’t automatic. So if someone passes away and leaves you a house, That’s great. But it doesn’t mean you own the house right away or just like right off the bat, right? You need to make sure that the title to the house catches up to you. [Edit: technically, I should clarify that it is automatic by law, in theory, see Indiana Code 29-1-7-23, but in practice you need the records to catch up.]  

    And there are lots of different ways to do that. I spend lots of time every day trying to figure out these puzzles and try to think of the best way to make sure that title has caught up to, you know, what my clients think is going on.

    Probate Scenarios: No Title Yet

    So a really common scenario is husband and wife own a house, one spouse dies, years later the other spouse dies, and now you’ve got children who are inheriting, but we still, and we’re maybe working on the will of the second spouse, you know, administering that. And it’s like, wait a minute, the first spouse is still on the title. We got to get that cleaned up.  

    Or two parties get divorced. Spouses own a house together, they get divorced, they go on their way, and then years later, one of the former spouses dies. And now we’re trying to do a probate and worrying about the house title. And we say, wait a minute, we’ve still got both names on the title, you know, got to fix that.  

    What are some other common problems? I mean, and just even at the most basic level, you know, you get heirs who are trying to sell a house, you know, an inherited house and they’re trying to sell it, but they haven’t done a probate yet, or they haven’t done any sort of title work.  

    And then the closing is hung up, right? Because the buyer and the seller, the realtors, the closing people, the title company all say, wait a minute, wait, you can’t sell a house you don’t own. So then we got to fix that.  

    Get Attorney Help With Your Title and Probate Problems

    So I guess the moral of the story is you’re going to have problems if you’re trying to do you know, if you’re relying on what you think the house ownership looks like without actually having, you know, caught up, you’re going to run into problems, right? The house sale won’t close or the mortgage company won’t deal with you and it’ll go into foreclosure, you know, or someone will come out of the woodwork with a claim against this house, you know, and they shouldn’t.  

    The answer to the click-baity title, like, are you sure you own the house is: you gotta look at the property records. You gotta figure out who actually owns it. And if necessary, you gotta do the legal work to catch everything up.  

    And sometimes that’s a full probate. Sometimes that’s a devolution affidavit or title passage affidavit. Sometimes that’s like other deed work, you know?  

    Just recently, I had to go look up an old, you know, like 1991, like really old divorce decree and figure out, you know, what happened all the way back then. So something to consider, you’re going to have hangups if you don’t clean it up beforehand.  

    We can do it in an emergency, but the sooner you do it, the better. And Like I said, there’s a problem-solving aspect to it, which I love to work with. So make sure you own your house before it causes problems.  

    If you don’t own your house, especially if it’s an inherited house, come talk to a probate attorney like me. We’ll get you fixed up. That’s been all for today, just kind of an overview of title problems and how they relate to probate. I hope you’ve enjoyed it. Call me or look around the site for more information. Thanks. Bye. 

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now

  • Indiana Devolution Affidavits Explained

    Video

    Transcript

    (Auto-Generated)

    Good morning, folks. It’s Andy Stautz at Stautz Law. I’m back for another Indiana probate administration topic. And this one has been a long time coming. We are talking today about devolution affidavits.  

    What is a Devolution Affidavit?

    Devolution affidavits are a tool that you can use in certain circumstances to record a transfer of property from a decedent (Someone who died) to their intestate heirs (it’s an important qualification) without a formal probate administration.  

    This topic is kind of a minefield because there’s a lot of gray area in terms of when and how and whether it’s the right thing to do. So we’re going to talk about what a devolution affidavit is supposed to do first and then we’ll kind of talk about some limitations. And then we’ll kind of talk about how you decide. Whether it’s it’s a good idea.  

    Basic Rule: Title to Property Passes at Death

    So at its most basic, a devolution affidavit is just giving effect to a provision in the probate code that says. “When a person dies, their stuff goes to their heirs.” Like that’s the basic rule, right? But to understand what happens next, you need a bunch of legal concepts.  

    Exceptions to Title Passage at Death

    Basically. There are a bunch of exceptions to the general rule, so the general rule is when you die, your stuff goes to your heirs. Except. The personal representative, if there is one. You know, is in charge of administration. You know, except a will doesn’t take effect unless it’s been admitted to probate. You know, creditor claims … title passes, except it’s subject to credit or claims until the nine month absolute claims bar. And so forth.  

    How a Devolution Affidavit Works

    Umm. So a devolution affidavit is basically supposed to say. “Here’s how that title passed. And here’s why none of those exceptions are going to be a problem for us now.” So we talked a few weeks ago or a few days ago about small estate affidavits. If the total estate’s less than $100,000, you can use this one pager to get personal property.  

    OK. Well, what about real property? The devolution affidavit is basically the answer to transferring real property without probate. It’s not subject to that $100,000 small estate limit.  

    What is in a Devolution Affidavit?

    But it’s subject to some other. Conditions. OK, so those conditions are set out in I.C. 29-1-7-23. Just pulled up that code citation for you. And that’s where it says, OK you can. You can record an affidavit. Just like a deed that says. “This property was owned by the decedent. These are the heirs. . . that can be one person or many people. You know, here’s how it descends.”  

    And you record that. And it’s effective as a transfer. And then if after the time limit for opening a probate estate comes and goes. And the creditor period comes and goes. Then it’s like, OK, nothing can disrupt this now. So it’s final.  

    So anyone else who wants to buy the property or whatever can do it without worrying that a personal representative’s suddenly going to open an estate or a creditor is going to come forward with the claim.  

    Finality of Devolution Affidavits; Title

    Some of the gray areas are of course like what? How final is that really? Because unlike probate, where there’s a formal procedure and the court is at least a little bit involved in granting the petition. [With a devolution affidavit] you’re pretty much just relying on whoever makes the affidavit to say so about who gets the property and why.  

    And as we’ve discussed in the past. You know, there’s this escape hatch in the probate code that says you can probate a will to prove passage of title of property that’s still titled in the name of a decedent. In theory, the devolution affidavit should defeat that because once it becomes effective, the property is no longer titled in the name of the decedent.  

    But in practice some title companies are a little leery of this. Some Realtors don’t know how to work with it.  

    How to Decide if a Devolution Affidavit Will Work for You

    To sum it all up, you know, what you kind of need to know is, is there a will? Because if there’s a will the rules say you have to probate it, so no devolution affidavit for you. Is there potential family conflict? If so, probably no devolution affidavit for you, right? You don’t want to be part owners with a bunch of people who don’t get along. You know, are there other assets that would make a formal administration a better idea? You know, what are your plans in terms of sale? Does it, you know, if you’re just staying in the house, then maybe yeah, you do devolution affidavit– you don’t need to get along with your seller.  

    So there are a lot of considerations, but it’s kind of this backdoor method to pass real estate down if there’s no will. You know, all you’re trying to do is move the property and you know it gains finality once the time limits pass for everything else.  

    Conclusion: Seek Legal Advice

    I hope that was. Some consideration of what’s out there. A full discussion of how the title passes and when it’s perfected is…. I think requires a legal background. But. That’s kind of the overview. Hope it was helpful and if you’ve got questions about this. I do them all the time. I, you know, decide whether probate is appropriate, decide whether a devolution affidavit is appropriate and you know, and charge accordingly. 

    So. Give me a call if you’ve got questions. This was an overview I can give you specific advice if you are my client. Thanks and bye. 

    Want to talk more?

    Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.

    Book Now