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Thursday, August 10, 2017

A Real Life Story | The Potential Pitfalls of Non-Probate Transfers of Real Estate

Summary: For some people, transfer-on-death deeds can be a quick, low-stress and inexpensive way to transfer a property and avoid probate. They can also, though, create pitfalls that can trap and harm an unwary person. While these types of deeds can be a useful part of some estate plans, for others, there may be better ways of avoiding probate with other techniques.  

Today, more than ever, state laws allow people to transfer more assets than ever through the use of pay-on-death and transfer-on-death beneficiary designations. Laws allowing for transfer-on-death designation deeds, which were rare just a decade ago, exist in many states now.

These deeds can be helpful. They can also be problematic. A case from Missouri showed this in action. A man and a woman acquired their home in 1946, taking title as husband and wife. In 1989, Missouri’s Legislature enacted a “Nonprobate Transfer Law” that allowed for the creation of beneficiary deeds (a/k/a transfer-on-death deeds) in that state. Four years later, in 1993, this couple took advantage of the new law and created just such a deed, naming a nephew as the beneficiary.

So far so good. However, less than a year later, in 1994, the couple decided to transfer their home to the wife individually. This deed, unbeknownst to them, would create substantial legal issues later. “Later” came in 2009 when the wife, who had outlived her husband, died. The administrator of the wife’s probate estate sought to include the property in the woman’s probate estate. The nephew contested this action, arguing that the 1993 deed and the couple’s deaths made the property his outright.

The question left for the courts to sort out was, in essence, what effect did the 1994 deed have on the beneficiary designation created the year before? Ultimately, the Missouri Court of Appeals ruled that, when the couple transferred the deed from both of them to the wife alone, that transaction triggered a termination of the beneficiary designation they’d created the year before. This meant that the property went into the woman’s probate estate. It didn’t go to the nephew and it didn’t avoid probate.

We don’t know what the couple’s intentions were toward the nephew when they created the 1994 deed. Maybe they did intend to wipe away the beneficiary designation. Or, maybe, they created this deed as some sort of attempt at Medicaid planning and never intended for it to have any negative impact on the nephew or the probate-avoidance plan they set up in 1993. At best, their assets went where they wanted, but only after an arduous, time consuming and probably expensive court case. At worst, their home went through an arduous, time consuming and probably expensive court case AND the home failed to go where they wanted it to go.

One possible way to avoid the pitfalls that can sometimes come with transfer-on-death deeds is with a revocable living trust. Like a transfer-on-death deed, a properly executed and funded living trust will avoid probate and allow for the relatively swift and typically inexpensive transfer of assets. Your living trust can help you to avoid unintended consequences that come with transfer-on-death deeds like unintentional disinheritance, unintentional distributions to ex-spouses or, as was the case here, a potentially unintentional termination of a beneficiary designation.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


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