What are the Steps for Transferring Property from the Heirs of a Deceased Owner in Virginia?
Full Question:
Answer:
The beneficiaries of that real property in another state must request that the court where the real property is located appoint a personal representative. This is called an ancillary administration. A disclaimer of interest will need to be filed by those who stood to inherit the real property in order for the estate administrator to deed the property to you.. The disclaimer will be filed, along with an affidavit and the new deed, at the county recorder’s office where the property is located. We suggest calling the county recorder’s office for applicable requirements and fees, as they vary by local area.. For more specifics on procedures required, please see the statutes below.
If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws. Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.
Please see the following VA statutes:
§ 64.1-196.4. Power to disclaim; general requirements; when irrevocable. —
A. A person may disclaim in whole or in part, any interest in or power
over property, including a power of appointment. A person may disclaim
the interest or power even if its creator imposed a spendthrift provision
or similar restriction on transfer or a restriction or limitation on the
right to disclaim.
B. Except to the extent a fiduciary's right to disclaim is expressly
restricted or limited by another statute of this state or by the
instrument creating the fiduciary relationship, a fiduciary may
disclaim, in whole or in part, any interest in or power over property,
including a power of appointment, whether acting in a personal or
representative capacity. A fiduciary may disclaim the interest or power
even if its creator imposed a spendthrift provision or similar
restriction on transfer or a restriction or limitation on the right to
disclaim, or an instrument other than the instrument that created the
fiduciary relationship imposed a restriction or limitation on the right
to disclaim.
C. A custodial parent of a minor for whom no guardian of the property
has been appointed may disclaim, in whole or in part, an interest in or
power over property, including a power of appointment, that (but for the
custodial parent's disclaimer) would have passed to the minor as the
result of another disclaimer. The custodial parent may disclaim the
interest or power even if its creator imposed a spendthrift provision or
similar restriction on transfer or a restriction or limitation on the
right to disclaim.
D. To be effective, a disclaimer shall be in writing or other record,
declare the disclaimer, describe the interest or power disclaimed, be
signed by the person making the disclaimer, and be delivered or filed in
the manner provided in § 64.1-196.11. In this subsection, "record"
means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable
form.
E. A partial disclaimer may be expressed as a fraction, percentage,
monetary amount, term of years, limitation of power, or any other
interest or estate in the property.
F. A disclaimer becomes irrevocable when it is delivered or filed
pursuant to § 64.1-196.11 or when if becomes effective as provided
in §§ 64.1-196.5 through 64.1-196.10, whichever occurs later.
G. A disclaimer made under this chapter is not a transfer, assignment,
or release.
§ 64.1-196.5. Disclaimer of interest in property. —
A. In this section (i) "time of distribution" means the time when a
disclaimed interest would have taken effect in possession or enjoyment,
and (ii) "future interest" means an interest that takes effect in
possession or enjoyment, if at all, later than the time of its creation.
B. Except for a disclaimer governed by § 64.1-196.6 or § 64.1-196.7,
the following rules apply to a disclaimer of an interest in property:
1. The disclaimer takes effect as of the time the instrument creating
the interest becomes irrevocable, or, if the interest arose under the law
of intestate succession, as of the time of the intestate's death.
2. The disclaimed interest passes according to any provision in the
instrument creating the interest providing for the disposition of the
interest, should it be disclaimed, or of disclaimed interests in
general.
3. If the instrument does not contain a provision described in
subdivision 2, the following rules apply:
a. If the disclaimant is an individual, the disclaimed interest passes
as if the disclaimant had died immediately before the time of
distribution. However, if by law or under the instrument, the descendants
of the disclaimant would share in the disclaimed interest by any method
of representation had the disclaimant died before the time of
distribution, the disclaimed interest passes only to the descendants of
the disclaimant who survive at the time of distribution.
b. If the disclaimant is not an individual, the disclaimed interest
passes as if the disclaimant did not exist.
4. Upon the disclaimer of a preceding interest, a future interest held
by a person other than the disclaimant takes effect as if the disclaimant
had died or ceased to exist immediately before the time of distribution,
but a future interest held by the disclaimant is not accelerated in
possession or enjoyment.
§ 64.1-196.14. Recording of disclaimer. —
If an instrument transferring title to real property is disclaimed, a
copy of the disclaimer shall be recorded in the office of the clerk of
the circuit court for the jurisdiction where the real property is
located. If any other interest in or power over property subject to a
disclaimer is required or permitted by law to be filed, recorded, or
registered, the disclaimer may be so filed, recorded, or registered.
Failure to file, record, or register the disclaimer does not affect its
validity as between the disclaimant and persons to whom the property
interest or power passes by reason of the disclaimer.
§ 64.1-196.11. Delivery or filing. —
A. In this section, "beneficiary designation" means an instrument,
other than an instrument creating a trust, naming the beneficiary of (i)
an annuity or insurance policy; (ii) an account with a designation for
payment on death; (iii) a security registered in beneficiary form; (iv) a
pension, profit-sharing, retirement, or other employment-related benefit
plan; or (v) any other nonprobate transfer at death.
B. Subject to subsections C through L, delivery of a disclaimer may be
effected by personal delivery, first-class mail, or any other method
likely to result in its receipt.
C. In the case of an interest created under the law of intestate
succession or an interest created by will, other than an interest in a
testamentary trust (i) a disclaimer shall be delivered to the personal
representative of the decedent's estate or (ii) if no personal
representative is then serving, it shall be filed with a court having
jurisdiction to appoint the personal representative.
D. In the case of an interest in a testamentary trust (i) a disclaimer
shall be delivered to the trustee then serving, or if no trustee is then
serving, to the personal representative of the decedent's estate or (ii)
if no personal representative is then serving, it shall be filed with a
court having jurisdiction to enforce the trust.
E. In the case of an interest in an inter vivos trust (i) a disclaimer
shall be delivered to the trustee then serving; (ii) if no trustee is
then serving, it shall be filed with a court having jurisdiction to
enforce the trust; or (iii) if the disclaimer is made before the time the
instrument creating the trust becomes irrevocable, it shall be delivered
to the settlor of a revocable trust or the transferor of the interest.
F. In the case of an interest created by a beneficiary designation made
before the time the designation becomes irrevocable, a disclaimer shall
be delivered to the person making the beneficiary designation.
G. In the case of an interest created by a beneficiary designation made
after the time the designation becomes irrevocable, a disclaimer shall be
delivered to the person obligated to distribute the interest.
H. In the case of a disclaimer by a surviving holder of jointly
held property, the disclaimer shall be delivered to the person to
whom the disclaimed interest passes.
I. In the case of a disclaimer by an object or taker in default of
exercise of a power of appointment at any time after the power was
created (i) the disclaimer shall be delivered to the holder of the power
or to the fiduciary acting under the instrument that created the power or
(ii) if no fiduciary is then serving, it shall be filed with a court
having authority to appoint the fiduciary.
J. In the case of a disclaimer by an appointee of a nonfiduciary power
of appointment (i) the disclaimer shall be delivered to the holder, the
personal representative of the holder's estate or to the fiduciary under
the instrument that created the power or (ii) if no fiduciary is then
serving, it shall be filed with a court having authority to appoint the
fiduciary.
K. In the case of a disclaimer by a fiduciary of a power over a
trust or estate, the disclaimer shall be delivered as provided in
subsection C, D, or E, as if the power disclaimed were an interest
in property.
L. In the case of a disclaimer of a power by an agent, the disclaimer
shall be delivered to the principal or the principal's representative.
§ 64.1-135. Affidavit relating to real estate of intestate decedent. —
Upon the death intestate of a person owning real estate, any person
having an interest therein, including a personal representative who has
qualified, may execute an affidavit, on a form provided to each clerk of
the court by the Office of the Executive Secretary of the Supreme Court
or a computer-generated facsimile thereof, setting forth briefly (i) the
real estate owned by the decedent at the time of his death situated
within the city or county where such affidavit is to be recorded; (ii)
the intestacy; and (iii) the names and last known addresses of the heirs
at law. The clerk of the court of the county or city in which deeds are
admitted to record and in which such real estate or any part thereof is
located, shall, upon the payment of the fees provided by law, record and
index the same as wills are recorded and indexed.
The clerk of the court of the county or city where such affidavit is
recorded shall transmit an abstract of said affidavit to the commissioner
of the revenue of said county or city as in the case of deeds conveying
real estate. Upon receipt thereof by said commissioner, such real estate
may be transferred upon the land books and assessed in accordance
therewith.