Before 2014 when the Transfer on Death Deed Statute was enacted, the only way to avoid Probate on real estate was a Quitclaim Deed to transfer title to your home into your name as Trustee of your Trust while you are living.
However, this has disadvantages, especially for landlords. If you want to refinance a property in a Trust you have to Quitclaim the property to yourself, get the loan, then Quitclaim back to the Trust, which is expensive. This is necessary because the Trust does not have a credit rating to qualify for the loan.
If you were a landlord before 2014 then you had a choice, you could either Quitclaim your property into an LLC to limit liability or Quitclaim to a Trust to avoid Probate, but you couldn’t do both. Now, you can Quitclaim to an LLC with the Member interest as Trustee of your Trust during your life to limit liability and record a Transfer on Death Deed during your life which does not change the title when recorded. When you pass away, your Successor Trustee records a certified copy of your Death Certificate and the County Recorder transfers the property to the Trust without a Probate Court Order. This is similar to the transfer without Probate for surviving spouses who just record the Death Certificate of their lost partner and the County Recorder removed the name of the deceased and re-titles the property in the surviving spouse’s name as an unmarried individual as sole & separate property.
Transfer on Death Deeds are preferred because they transfer title to your home to your Trust after you pass away and avoid the disadvantages of a property being in a Trust during your life.
Transfer on Death Deeds apply even if the property is in an LLC, so if you have recorded a Transfer on Death Deed on a property, if you later Quitclaim the property into an LLC, the Transfer on Death (TOD) Deed is still effective.
Here is a link to Transfer on Death Deed information.
Quitclaiming to a Trust can be useful if you want to give someone a Life Estate, which is the right of a person to live in a house until they die, but not own it so that the proceeds of the sale go to someone else. An example of when this might be used is if a spouse wanted to give their surviving spouse the right to live in the house until they die and then have the proceeds of the sale go to the adult children from a prior marriage. Without the Life Estate, the step-children may have been disinherited.
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Mulvaney Law Offices, PLLC is located in Bellevue, Washington, representing estate planning & probate, chapter 7 and chapter 13 bankruptcy, and real estate transactions clients in:
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