Probate problem
I did my first deal, almost.
The owners husband recently died. Standard deed was used that defaults to tenants in common. Probate required. Now deceased husbands sons will be invloved if it goes through probate.
Shes moving next week and has already given me the keys.
I was going to buy it conventional and make 20k. Now I'm thinking its better to do something creative. Leave the title as is and perhaps a subject to, long lease, or land trust.
What would you do??
Ken . . .
I believe you are on the right track!
However, I'd get the surviving Wife to deed the home into a Land Trust and grant you a Power of Attorney.
This can be done quite simply by having both her and you to discuss the atter with an Estate Planner ATTY familiar with the Probate laws of your State.
The costs involved cold save you much trouble and place your fears about the sons to rest.
Hope this helps!
Derrick Ali
PS. Also, you can check out my eBook: "The Complete Probate Property Mktg. Guide" available here on TCI!
If I go the land trust route, what will have to happen when a buyer with new financing shows up.
Does the probate problem get buried in the land trust?
Another thing. She's heading out with Death Certificate in hand to see if she can get appointed Executor. We that action cause any problems.
ie. Will it notify the son and go into the black hole??
I just spoke with the attorney handling the convention sale. She tells me that the contract is "Tenant in common", and that in Georga, my seller has her half and 50% of the deceased's half due to marriage. She owns only 75% at this point.
I inquired with the attorney if the seller could put it in a land trust and she replied absolutely not, she only owns 75% of the house!
Is this a case of reality messing up creative financing, or is the attorney wrong?
As the Surviving Joint of the Tenancy-in-common...the Wife should be able to successfully bypass having the property in probate by executing a Revocable Living Trust(RLT).
to AVOID Probate: She should review this with a probate attorney to see what the rules are for GA.
She can then name you as her co-beneficiary Remainder agent in the land trust.
It would not matter when a new buyer comes along with the cash that the title is in the name of "the Wife's Land Trust"...
Only that you have direction through your Beneficial Interest and/or Power of Attorney by the surviving Wife.
Does this make sense?
kwhiteside,
Glad to meet you.
The probate process is long and best left to the Attorneys. The Judge handling the probate has the final decision, so trying to shift ownership without court approval is not in your best interests.
What is probate?
Probate is a legal process that takes place after someone dies. It includes:
Proving in court that a deceased person's will is valid (usually a routine matter)
identifying and inventorying the deceased person's property having the property appraised paying debts and taxes, and
distributing the remaining property as the will (or state law, if there's no will) directs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.
Probate usually works like this: After your death, the person you named in your will as executor -- or, if you die without a will, the person appointed by a judge -- files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them.
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on.
Eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
Dealing with Probate matters without taking the advice of a Qualified Attorney dealing in Probate will most likely have you explaining to the Judge how you tried to skirt the system using Trusts, etc.
Welcome on board this board, listen to a qualified legal professional on this one.
John $Cash$ Locke
Ken:
J$L is K-Rekt as I previously stated:
"...To AVOID (not evade) Probate: She should review this with a Probate ATTORNEY to see what the rules are for GA."
Just as J$L seconded- Thanx Ca$H!
Thanks guys
I don't think she even has a will naming her executor. Probate then means, deal is a problem.
Attorney and Land trust is a possiblity if we stay out of Probate and Attorney advises.
What about the fact that she's just gonna up and leave this property. There's gotta be another way that I can lease this property and just make her existing payments to get some cash flow?
kwhiteside,
I think you missed a very important point here. It is the husband who died -- not the wife. It is the husband's will that will need to be probated.
If the husband had a will that left his half of the house to his spouse, then the probate court will transfer title to the spouse. If the husband did not have a will, then the intestate laws for the state will determine how the husband's half of the house is distributed to his heirs.
Go back and ask that lawyer why the wife could not transfer her interest in the house to a trust using a quit claim deed.
The attorney is saying that the wife only owns 75% of the house (Until probate says different). To transfer title, I need 100% of the owners to transfer. Isn't that correct?
Lets assume that she's moving regardless, and that probate will not finish before she moves.
I want to offer to try to fill the house for her and make the mortgage and insurance payments as they stand now.
What would you recommend I do to get control while probate works itself out. I want to be sure I don't waste my time, or the family I make a lease to.
Should I do a lease option with right to sublease.
Should I do Landtrust.
Should I try quit claim even though she clearly is not in full control at this moment in time.
Please explain the pros and cons of what you would do.
Ken . . .
Quote:The attorney is saying that the wife only owns 75% of the house (Until probate says different). To transfer title, I need 100% of the owners to transfer. Isn't that correct?
Lets assume that she's moving regardless, and that probate will not finish before she moves.
I want to offer to try to fill the house for her and make the mortgage and insurance payments as they stand now.
What would you recommend I do to get control while probate works itself out. I want to be sure I don't waste my time, or the family I make a lease to. Ken,
The wife owns a partial interest in the house. The wife can establish a revocable trust, quit claim her interest -- whether that is 50% or 75% or 100% -- in the house to the trust, appoint you as trustee, then assign beneficial interest in the trust to you.
Now you are in a stonger position to deal with the other heirs to purchase their partial interest, perhaps at a generous discount. Of course, if you are unable to reach an agreement with the heirs, you could bring a partition suit to force sale to get your profit.
As long as other heirs have a claim to the property, I would not enter into any lease or sale agreements without their consent and approval.
Suggest you talk to another lawyer, this one does not seem willing to entertain alternatives outside his comfort zone.