You own your home and want to ensure that it passes to particular loved ones upon your death but you’re not sure the best way to do it. This blog post will break down your options for you.
First, it is important to look at your deed and determine how the property is held. Often married couples have a Survivorship deed. With a Survivorship deed, upon the death of one spouse, the real estate transfers to the surviving spouse outside of probate. What that means is that when one spouse dies, the survivor won’t need to go through a court proceeding to transfer the property to the survivor. Instead, the survivor will only record an Affidavit of Surviving Spouse with Death Certificate with the County Recorder. If you are a married couple without a Survivorship Deed, it is particularly important that you consider your probate avoidance options. A Cleveland estate planning lawyer can review your deed and advise you whether or not you have a Survivorship Deed.
Last Will and Testament
In a Last Will and Testament, you can name the individual/s you wish to inherit your home, as well as your other probate property. With a Last Will and Testament, your home will need to go through the probate process. A Last Will and Testament should be a “just in case” document, meaning ideally all your home and your other assets will avoid probate upon your death and go directly to your loved ones.
Transfer on Death Affidavit
This Affidavit allows you to transfer your home outside of probate to named beneficiaries in whatever fractions you choose. A Transfer on Death Affidavit is a simple, cost-effective document that will be prepared by a Cleveland estate planning lawyer. Like a Survivorship Deed, upon the death of the owner, a court process won’t be necessary to transfer ownership of the home. Rather, only an affidavit and death certificate will need to be recorded with the County.
A Living Trust, also referred to as a Revocable Trust or Family Trust, allows you to transfer your home outside probate to named beneficiaries. You determine what the terms of Trust will be so you decide when the home (and other trust property) is sold or not sold, one what terms, and who benefits and how. There is also one Trustee, who you appoint, who will be in charge of making sure the Trust terms are carried out.
Transfer on Death Affidavit or Living Trust?
The Transfer on Death Affidavit is a good fit for those who are seeking a cost- effective probate avoidance tool for the home and have one or two beneficiaries.
The Living Trust is generally better for those with more than two beneficiaries or multiple beneficiaries that do not get along. The reason for this is, with a Transfer on Death Affidavit, if the home is to be sold, all beneficiaries, as well as their spouses if they are married, must agree to a sale. Alternatively, with a Living Trust, only the trustee/s must agree on the sale. In the case of the Affidavit, if the owners cannot agree on a sale then a Partition Action would need to be initiated in Common Pleas Court for the sale of the home, a time consuming proceeding.
A Living Trust may also be utilized over a Transfer on Death Affidavit if there are other estate planning goals, beyond probate avoidance, to have a trust put in place.
Estate planning for your home, like all your assets, should be part of a holistic plan, put in place with the help of a Cleveland estate planning lawyer. For more information on preparing an estate plan that meets your individual needs, contact a Cleveland estate planning attorney.