For title attorneys, it is common to see title issues arise from family property that was not disposed of or otherwise accounted for prior to a person’s death. Often, many of these issues can be avoided through planning. When someone owns property, no matter their age, it is important to think about their future and what they would like to happen with their property in the event of their death. Planning this in advance helps avoid many common issues and creates an easier process.
While there are several planning methods, the most common are through a will or trust. By far the most efficient way to control how a person’s property is distributed is by setting up a trust, which can either be revocable or irrevocable. Through the setup of the trust, owners of the property describe in writing how they want their property to be disposed of upon their death. The trust will appoint trustees and successor trustees, which eliminates the need for probate. A revocable trust allows the property owner to control the assets in the trust until their death, assuming they name themselves as trustee. This type of trust can be amended at any time. Upon the death of the owner, the trustees (or successor trustees) retain the ability to sell the property held in trust and distribute any proceeds according to the schedule of beneficiaries. An irrevocable trust is a trust that cannot be changed once it is created without the consent of the trust’s beneficiaries.
Another way to ensure that a person’s property is handled according to their wishes is to have a will. A will represents a person’s wishes, in the event of their death, from naming personal assets and possessions to family, friends, or organizations. The will needs to appoint a personal representative, which is a person responsible for ensuring the wishes set forth in the will are carried out. In the matter of real estate assets in a will, the most important thing for the will to contain is a provision stating that the personal representative of a will has the power to sell real estate, without surety. This means that the personal representative will then be able to sell the property without asking permission from the court. Contrary to how trusts operate, the will needs to be admitted to probate.
If you have questions about establishing estate plans or have inherited a piece of property and have questions about how to proceed, please contact Attorney Michelle Bessette Oliveira at moliveira@pkboston.com or (508) 807-1131 for a consultation.
The above information is designed to provide a helpful overview of a relevant topic. It does not constitute legal advice nor should it be construed as such. Please do not take action based on the above information without seeking formal legal advice.