A "deed" is a title to property, usually real estate; and a survivorship deed is one in which ownership is shared between two or more people with what is called "rights of survivorship." A survivorship deed is commonly used when a husband and wife purchase a home, and want to avoid the costs of probate court upon the death of one or the other. However, it is important to note that upon death of the last named beneficiary, the property will undergo normal probate procedures.
Avoiding Probate Court
It is probate court, with its associated lawyers and legal fees, that most people want to avoid. One approach to doing so is to establish a living trust: an arrangement by which one party (the "trustee") keeps title for another (the "beneficiary"). Similar to a will in many respects, a living trust has the added advantages of being kept private, avoiding any costs of additional-state probate proceedings if there is property held in another state, and most importantly, is not subject to probate court proceedings. Although some people think that there is tax savings with a living trust, the fact is that both a will and a living trust must pay taxes upon the death of the executor or trustee.
Transferring Title from Survivorship Deed
So, if you've had a survivorship deed up until now, say, the deed to your house, and you would like to transfer it to a living trust, what should you do?
- Sign a trust agreement, known as a trust transfer deed, establishing yourself as the trustee and registering assets in the name of the trustee (or trustees).
- Sign a quitclaim deed transferring ownership of the property from you to the trust.
- Contact the County Recorder's office where the property is located, and notify them of the change of ownership. Different states may have different methods of doing this: in California, for example, you will need to fill out the Preliminary Change of Ownership report. Whatever the procedures are in your state, follow them.
- Ask to see the last deed executed and recorded on the property in question. If the last deed is in the name of your living trust, you are finished.
Finding Legal Help
Deeds, wills, and living trusts are incredibly complicated legal devices that can have huge unintended consequences if even a word or two is not phrased correctly. Anyone considering altering or writing one should consult an attorney to be sure that what they want is done correctly.