My mother recently died and she owned a house. Can a quit claim deed be done to prevent probate?
People can use quit claim deeds to transfer property, and avoid probate, prior to passing. This would be part of an estate planning strategy. But the owner of the real property being conveyed would need to sign the deed and have their signature notarized, so the deed can be recorded. So this is something they would need to do before they die.
After death, the decedant’s property is transferred according to state law to their heirs. This is knows as intestate succession. You can research the statutes in you state using Legal.com’s legal research tool.
Legal.com has lots of resources for people transferring real estate, writing wills and trusts and using all these tools to plan their estates. Here are a couple of links to these legal forms and self-help law books:
Wills and trusts forms
Estate planning guides
Although the general belief is that probate is bad and must be avoided at all costs, that is not necessarily true. First off, it doesn’t need to cost and arm and a leg. You can shop for attorneys who are willing to keep costs under control. In California where I practice, the probate code generously rewards attorneys but for simple cases, I frequently discount my fee. Probate is also a little like bankruptcy in that creditors of the decedent are given a finite time in which to file their claim. After the claims deadline expires, they can no longer collect from the decedent. In practice, this means it’s not uncommon for death to cancel debts, because a lot of creditors fail to file their claims in probate cases.
You can do your own probate proceeding to save the attorney’s fee, but it’s a bunch of work that you might not want to take on. So the first step would be to talk to some attorneys in your area who handle probate work to see if the fee they would charge is worth it to you. Search probate lawyers in your city and state.
Your question is very general because it doesn’t give a lot of information about your mom’s situation or where she lived, so this answer is also general. Still, there is good information here to help guide you as you move forward. The take away is that it’s a good idea to do a little estate planning, by checking with an attorney before you need probate services. With some planning, including setting up a living trust with a pour-over will that can be changed while still alive, people can have their estate in order for their heirs.
There is also an estate tax return to file but, under present tax code, most heirs today won’t have to pay a federal estate income tax.
I know a general answer isn’t legal advice but I hope this helps get you pointed in the right direction.
Best, — Dave
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