Do You Need to Qualify on an Estate to Transfer Ownership in Real Property?
If you have bought or sold a home, you are probably aware that ownership interest in real property is conveyed by deeds. Deeds are legal documents used in real estate that transfer ownership of real property from a grantor (seller) to a grantee (buyer). The deed, once executed, is then recorded with land records in the court where the real property is located to show chain of title or the history of ownership of the property.
But what happens when an individual owning real property passes away? Is probate necessary to transfer ownership? Under Virginia law, title to real property vests in the devisee or heir immediately upon the death of the decedent. Simply put, as soon as an individual passes away the interest in the property passes to the devisee (if there is a Will) or heir(s) (if there isn’t). How the property passes is of course dependent on how it is titled as well.
The most common scenarios are as follows:
- The property was owned jointly with right of survivorship;
- The property was owned jointly without right of survivorship; or
- The property was solely owned by the decedent.
If the property was owned jointly with right of survivorship and the other owner is still living, then the property automatically passes to that individual and he/she becomes the sole owner immediately upon the death of the individual. CAUTION: Virginia requires that deeds have “survivorship language” for the survivorship right to attach. If this language is not present, then the presumption is that the property is owned jointly without the right of survivorship. This applies even to married couples!
If the property is owned jointly without the right of survivorship, the decedent’s interest, but only the decedent’s interest, in the property passes immediately by the terms of their Will or, if there is no Will, by intestate succession. Similarly, if the property was solely in the decedent’s name, it passes by the terms of their Will or by intestate succession. For example, mom passes without a Will. She is unmarried and has three children. All three children automatically become equal owners of the property upon mom’s death.
Because ownership interest in the property passes immediately upon the individual’s passing, qualifying as Executor or Administrator is not necessary simply to transfer ownership interest in real property. It is a good idea, however, to record the decedent’s will, if there is one, with the appropriate court. The recordation of the individual’s Will acts as the new “deed” to show chain of title. Additionally, a deed of Confirmation can be done and filed with the land records of the appropriate court, but it is not necessary.
While qualifying as Executor or Administrator of the decedent’s estate is not necessary to transfer ownership interest in real property, be sure to seek advice from an experienced attorney. Estates are not one size fits all and every situation is different. There may be other issues pertaining to the real property that need to be addressed.
Ask Kit Kat: Cats Companions – A Long History
Hook Law Center: Kit Kat, what can you tell us about the history of cats, and how long have they been known to be pets?
Kit Kat: Well, my feline relatives have been around for quite a while! A recent discovery of an almost entire cat skeleton in what is now known as Kazakhstan has enabled scientists to come to some interesting conclusions. Heretofore, only small parts of cat skeletons had been found. But the completeness of this skeleton enabled them to come to some dramatic conclusions. Led by a team from Martin Luther University in Halle-Wittenberg, Germany, they found out information related to its ancestry and diet. It appears that the skeleton of the cat they found probably was a pet which may have accompanied its owner as he tended goats or cows in a nomadic way of life, perhaps over 1,000 years ago. The cat had multiple bone fractures and an incomplete set of teeth. It had lost its canines and some other teeth, so it would have been hard for the cat to find food on its own. A chemical analysis of its bones revealed that it had a high protein diet. Scientists hypothesize that a human was feeding it meat. The cat was undoubtedly a pet, most likely belonging to someone of the Oghuz people, who was a pastoralist, in what is now Kazakhstan, where the skeleton was found. Although some of these tribes did travel, there was a capital city called Dhzankent. Most animals they had served a purpose—for example, dogs guarded herds, etc. Ashleigh Haruda, one of the lead scientists of this study, comments, “The people at the city of Dhzankent not only kept this cat, but kept him alive and cared for him.” Was this unique or commonplace—that they do not know.
The team of scientists think they may find information about other animals from that era, too. Excavations are still ongoing at the site. (Megan Marples, “Cats may have been pets along the Silk Road over 1,000 years ago,” www.cnn.com, July 16, 2020)
Rachel H. Snead
757-399-7506 | 252-722-2890
Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.
A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).
In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.
She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.
- Estate Planning
- Estate & Trust Administration
- Guardianships & Conservatorships
- Litigation & Dispute Resolution