What forms do you need to transfer real estate from a parent who passed away into your name?

Full Question:

What forms do you need to transfer real estate from a parent who passed away into your name? Do you have to use a lawyer or can you do the process yourself? What steps need to be taken?
06/04/2009   |   Category: Wills and Es... ยป Probate   |   State: Washington   |   #16864

Answer:

When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The court will issue letters testamentary or letters of administration, giving the executor or administrator authority to collect the assets of the decedent. In order to issue letters of administration or letters testamentary a petition to probate the estate is filed.

To dispose of the real property interests of the decedent, the executor/administrator executes an fiduciary deed. The deed may be prepared and filed without an attorney. For example, if a person who is a co-owner dies, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining owners. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and automatically will inherit the share of a deceased joint tenant by right of survivorship, without the requirement of going through probate.

Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.

In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."

It may be possible to file for a small estate administration if the estate is valued at no more than $100,000. This is a simplied procedure that typically takes less time than the formal probate process. Washington allows an affidavit to be executed by the spouse and/or heirs of the deceased presented to the holder of property such as a bank to obtain property of the deceased, as long as forty days have passed since their death. Please see the statute 11.62.010 to determine applicablilty. Links to forms that are used in the small estate procedure are provided below.

If the estate isn't eligible as a small estate, I have provided links to forms for a petition and order for letters testamentary that may suit your needs.

The following are WA statutes:

RCW 11.62.010 (1) At any time after forty days from the date of a decedent's
death,....

(1) At any time after forty days from the date of a decedent's death,
any person who is indebted to or who has possession of any personal
property belonging to the decedent or to the decedent and his or her
surviving spouse as a community, which debt or personal property is an
asset which is subject to probate, shall pay such indebtedness or deliver
such personal property, or so much of either as is claimed, to a person
claiming to be a successor of the decedent upon receipt of proof of death
and of an affidavit made by said person which meets the requirements of
subsection (2) of this section.

(2) An affidavit which is to be made pursuant to this section shall
state:

(a) The claiming successor's name and address, and that the claiming
successor is a "successor" as defined in RCW 11.62.005;

(b) That the decedent was a resident of the state of Washington on the
date of his or her death;

(c) That the value of the decedent's entire estate subject to probate,
not including the surviving spouse's community property interest in any
assets which are subject to probate in the decedent's estate, wherever
located, less liens and encumbrances, does not exceed one hundred thousand
dollars;

(d) That forty days have elapsed since the death of the decedent;

(e) That no application or petition for the appointment of a personal
representative is pending or has been granted in any jurisdiction;

(f) That all debts of the decedent including funeral and burial expenses
have been paid or provided for;

(g) A description of the personal property and the portion thereof
claimed, together with a statement that such personal property is subject
to probate;

(h) That the claiming successor has given written notice, either by
personal service or by mail, identifying his or her claim, and describing
the property claimed, to all other successors of the decedent, and that at
least ten days have elapsed since the service or mailing of such notice;
and

(i) That the claiming successor is either personally entitled to full
payment or delivery of the property claimed or is entitled to full payment
or delivery thereof on the behalf and with the written authority of all
other successors who have an interest therein.

(3) A transfer agent of any security shall change the registered
ownership of the security claimed from the decedent to the person claiming
to be the successor with respect to such security upon the presentation of
proof of death and of an affidavit made by such person which meets the
requirements of subsection (2) of this section. Any governmental agency
required to issue certificates of ownership or of license registration to
personal property shall issue a new certificate of ownership or of license
registration to a person claiming to be a successor of the decedent upon
receipt of proof of death and of an affidavit made by such person which
meets the requirements of subsection (2) of this section.

(4) No release from any Washington state or local taxing authority may be
required before any assets or debts are paid or delivered to a successor of
a decedent as required under this section.

(5) A copy of the affidavit, including the decedent's social security
number, shall be mailed to the state of Washington, department of social
and health services, office of financial recovery.


RCW 11.28.110 Application for letters of administration, or, application for
an....

Application for letters of administration, or, application for an
adjudication of intestacy and heirship without the issuance of letters of
administration shall be made by petition in writing, signed and verified
by the applicant or his attorney, and filed with the court, which
petition shall set forth the facts essential to giving the court
jurisdiction of the case, and state, if known, the names, ages and
addresses of the heirs of the deceased and that the deceased died without
a will. If the application for an adjudication of intestacy and heirship
does not request the appointment of a personal representative and the
court enters an adjudication of intestacy no further administration shall
be required except as set forth in RCW 11.28.330 or 11.28.340.

RCW 11.28.330 If no personal representative is appointed to administer the
estate of a....

If no personal representative is appointed to administer the estate of a
decedent, the person obtaining the adjudication of testacy, or intestacy
and heirship, within thirty days shall personally serve or mail a true copy
of the adjudication to each heir, legatee, and devisee of the decedent,
which copy shall contain the name of the decedent's estate and the probate
cause number, and shall:

(1) State the name and address of the applicant;

(2) State that on the .... day of ...... , ...., the applicant obtained
an order from the superior court of ...... county, state of Washington,
adjudicating that the decedent died intestate, or testate, whichever shall
be the case;

(3) In the event the decedent died testate, enclose a copy of his will
therewith, and state that the adjudication of testacy will become final and
conclusive for all legal intents and purposes unless any heir, legatee, or
devisee of the decedent shall contest said will within four months after
the date the said will was adjudicated to be the last will and testament of
the decedent;

(4) In the event that the decedent died intestate, set forth the names
and addresses of the heirs of the decedent, their relationship to the
decedent, the distributive shares of the estate of the decedent which they
are entitled to receive, and that said adjudication of intestacy and
heirship shall become final and conclusive for all legal intents and
purposes, unless, within four months of the date of said adjudication of
intestacy, a petition shall be filed seeking the admission of a will of the
decedent for probate, or contesting the adjudication of heirship.

Notices provided for in this section may be served personally or sent by
regular mail, and proof of such service or mailing shall be made by an
affidavit filed in the cause;

(5) Mail a true copy of the adjudication, including the decedent's social
security number and the name and address of the applicant, to the state of
Washington department of social and health services office of financial
recovery.

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