transfer deed of house after death in michigan

The holder of a life estate, coupled with an absolute power to dispose of the fee estate by inter vivos conveyance, can convey a fee simple estate during the lifetime of the holder. If the power is not exercised, the gift over becomes effective.

This standard is important because of the role of title insurance in real estate transactions . As a practical matter, whether a deed is valid depends on whether a title insurance company will recognize the deed. The reason that lady bird deeds are not used in other states is that title insurance companies in those states don’t recognize them. This is not a problem in Michigan since the Michigan Title Standards explicitly recognize lady bird deeds.

Michigan lady bird deeds must meet the requirements of other deeds. These requirements include:

Like other deeds, lady bird deeds are valid when signed and delivered and should be recorded as soon as possible.

When preparing a Michigan lady bird deed, it is important to use correct language and format. Failure to do so could cause additional recording costs or refusal to register the deed. In some situations, improper drafting can invalidate the transfer or require costly court proceedings to straighten out title issues. The lady bird deeds prepared by our Deed Generator were designed by attorneys to meet all Michigan requirements.

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Transfer on Death Deeds

What Is a Transfer-on-Death Deed? If you own real estate, such as a home, in your sole name but you have not created a trust and transferred your property’s title to the trust, it is virtually guaranteed that your beneficiaries (or heirs) will have to deal with probate after your death. If the time and expense required to create a living trust does not make sense for your situation but you still want to avoid the probate process, a transfer-on-death (TOD) deed may be the solution. A TOD deed (also known as a beneficiary deed or sometimes called a Ladybird Deed) does what it sounds like it does—it transfers your real property to your selected beneficiaries upon your death, similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account. The TOD deed is considered an enhanced life estate deed. You own and control the property during your lifetime, but you also can also sell it, lease it, refinance it, give it away, or do anything else with it you choose. You continue to be responsible for paying the mortgage and taxes and maintaining the property. If you still own the property at your death, the TOD deed works to automatically transfer the property to your named beneficiaries without having to go through probate. And if you change your mind during your lifetime about whom you have named as beneficiaries in the TOD deed, you can amend or revoke it at any time. How is it used? Michigan is one of the more than twenty-five states that now allow the use of TOD deeds, and more states are considering adopting laws that allow them. You do not have to actually live in a state that allows TOD deeds to be able to use one, but the property must be located in such a state. The requirements for creating a TOD deed vary by state, but in essence, the process includes the following basic steps. Complete the TOD Deed With the assistance of an experienced attorney, determine the specific language required for the TOD deed to comply with the relevant state’s law. Remember to look at the requirements in the state where the property is located . A TOD deed will look much like any other property deed, but it will contain specific language that makes it clear that you own the property during your lifetime and the transfer to the named beneficiary does not take effect until after your death. Name Your Beneficiary Your beneficiary can be one or more people or organizations, such as a business, charity, or trust. You may want to consider naming a contingent, or alternate, beneficiary in case your first choice for beneficiary passes away before you or is not in existence when you die. You want to be sure to use the beneficiary’s legal name rather than categories or relationships, such as “my children.” For example, if you are naming your two daughters as your beneficiaries, you should use “Jane Doe and Julie Smith” instead of “my daughters.” If you name more than one beneficiary, you should indicate on the deed how the beneficiaries will own the property (as equal joint tenants with rights of survivorship, as tenants-in-common, each as to an equal one-half share, or some other form of co-ownership). Describe the Property Be sure to use your property’s correct legal description in the TOD deed. Your property’s legal description may be found on the current deed recorded in the official property records, your sales contract, or your mortgage documents. However, legal descriptions are not always copied accurately. It is important to consult an experienced real estate or estate planning attorney or a title company regarding the preparation of deeds and the accuracy of legal descriptions on deeds. Sign the Deed If you are the property’s sole owner, you are usually the only person who needs to sign the deed. However, if you are married and live in a community property state or if you have declared the property your homestead, it may be prudent or required that both you and your spouse sign the deed, a joinder, or a waiver to show that your spouse has no objection. An experienced real estate or estate planning attorney or title company can ensure that your intended transfer meets all legal requirements and is properly documented. If you co-own property with someone else as tenants in common, you can use a TOD deed to designate a beneficiary for your share of the property. If you co-own the property as joint tenants, all co-owners will need to sign the deed, and it will not be effective until the last surviving owner passes away. If only one co-owner signs the TOD deed, it will not be effective unless the signer is the last owner to die. Keep in mind that even if you and your co-owner sign a TOD deed, if you die first, the surviving co-owner can revoke the TOD deed before their death. Make sure the deed is signed according to the relevant state law. For example, Michigan requires that your signature be notarized. Some states require two witnesses. The beneficiary does not need to sign the TOD deed. In fact, a beneficiary does not even need to be told about the deed (although it is usually a good idea to do so). However, the deed will be recorded and become a matter of public record, so you will not be able to keep it a secret either. Record the Deed File the deed with the register of deeds or proper authority, along with the required recording fee. Again, consider working with an experienced real estate or estate planning attorney or title company to ensure that the TOD deed is accurate and effective and recorded properly. Benefits of a TOD Deed There are a number of reasons why you might want to use a TOD deed. As already discussed, a TOD deed can be used to avoid the public and sometimes costly and time-consuming probate process. In an effort to avoid probate, some property-owning parents will put their adult children’s names on their existing deed. The problem with this approach is that because the adult child is a current owner, the parents’ property becomes immediately subject to the child’s creditors, divorce settlement, etc. In addition, this approach may cause unintended gift tax consequences. If the property is subject to a mortgage, there may also be real estate transfer, conveyance, or documentary stamp tax consequences and even the inadvertent triggering of the mortgage’s due-on-sale clause. A TOD deed avoids this problem because there is no immediate transfer or change in beneficial ownership—a child beneficiary has no ownership in or legal right to the property until after their parents’ death. Another benefit of TOD deeds is that they can be created relatively cheaply and easily. In addition, a TOD deed can be changed or revoked at any time, but be sure to follow your state’s laws for effective revocation. A TOD deed will take precedence over a last will and testament, even if the will was written later, so it is important to remember that a will cannot change or revoke a TOD deed. One additional benefit with a TOD deed in Michigan and many other states is that when planning for long-term care, the creation of the TOD deed is not considered a divestment, a transfer that triggers a penalty period when attempting to qualify for Medicaid benefits. Disadvantages of a TOD Deed One of the downsides of a TOD deed is that complications can arise if you have multiple beneficiaries, significantly impacting beneficiaries’ inheritances or resulting in outcomes that do not reflect your ultimate wishes. Example : Mom has four adult children. She creates a TOD deed naming her four children as the beneficiaries of her home as joint tenants with rights of survivorship. Mom’s oldest child dies, leaving three children. Mom is incapacitated and cannot update the TOD deed. When Mom dies, the home will go to her remaining three living children, leaving the deceased oldest child’s two children (Mom’s grandchildren) with nothing. However, if the TOD deed named her four children as beneficiaries of her home as tenants in common, each beneficiary would inherit a separate but equal share, and in this example, the deceased child’s one-quarter share will be distributed according to their estate plan (and not automatically revert to their surviving siblings). Is a TOD Deed Right for You? A TOD deed is one of the tools available in estate planning, but it is not right for everyone. It can be an inexpensive and simple way to avoid the probate process upon your death and transfer your real property to your intended beneficiaries. However, it is important to understand the practical and legal implications for your individual situation and wishes. Please contact us if you have questions about whether using a TOD deed is appropriate for your circumstances.

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Property Transferred Without Probate

There are 4 kinds of property which pass to a new owner on death without going through probate:.

Property which is owned by the decedent and another person as joint tenants with right of survivorship will pass automatically to the surviving joint owner without going through probate (except in the case of certain joint bank accounts which are established with another person who is to act as agent for the decedent).

Beneficiary designated properties (such as life insurance, pension benefits, and IRAs) are payable on death, without probate, to the beneficiary designated by the decedent (or, if none, as designated in the contract or plan itself).

Properties owned by a revocable trust do not go through probate but instead are disposed of after death in accordance with the instructions written into the trust document.

There are even some forms of property owned solely by the decedent which would otherwise require probate that are exempt in certain instances. Those notable exceptions include the following:

Unpaid wages: An employer in Michigan may pay the wages due a deceased employee to the employee's spouse, children, parents, or siblings in that order unless the employee filed a request to the contrary with the employer.

Cash up to $500 and wearing apparel: A hospital, convalescent or nursing home, morgue, or law enforcement agency in Michigan holding cash not exceeding $500 and wearing apparel of the decedent may deliver that property to the decedent's spouse, child, or parent who provides (i) suitable identification and (ii) an affidavit which states the person's relationship to the decedent and that there are no pending probate proceedings for the decedent's estate.

Travelers checks: Most issuing companies (such as American Express) will redeem unused travelers checks following the death of the owner without requiring the appointment of a PR on submission of the checks, a death certificate, and an appropriate affidavit by the next of kin indicating to whom payment should be made.

Motor vehicle transfers: If the combined value of one or more of the decedent's motor vehicles does not exceed $60,000 and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, the vehicle's certificate of title, and certain other Michigan Secretary of State documents.

Watercraft transfers: If the combined value of all of the decedent's watercraft does not exceed $100,000, and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, and the certificate of title for the watercraft.

Income tax refund claims: These may be collected without probate by filing IRS or Michigan form 1310.

Transfer by affidavit: Personal property with a value not exceeding $15,000 may be transferred to a decedent’s successor by presenting a death certificate and an affidavit stating who is entitled to the property.

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REAL ESTATE LAW

How to remove a deceased person from a property deed in michigan.

Inheritance & Estate Law in Michigan

Empty American Style Courtroom. Supreme Court of Law and Justice Trial Stand. Courthouse Before Civil Case Hearing Starts. Grand Wooden Interior with Judge's Bench, Defendant's and Plaintiff's Tables.

Every time a person who owns real estate dies in Michigan, one of three things can happen to that real estate:

To understand these options, it is necessary to get an overview of estate law and the probate process in Michigan.

What Is Probate in Michigan?

If friends and relatives of a deceased individual were allowed to deal informally with the estate assets, it is very likely there would be controversy. At the very least, creditors might not be paid, and potential beneficiaries might be in conflict. That is why Michigan, like other states, requires that the estates of residents who die pass through a court-supervised process called probate.

Probate is a legal proceeding that governs the issues and controversies about how a decedent's estate should pass in Michigan. A personal representative is appointed to manage the proceeding.

Although there are several types of probate, ranging from a summary procedure for small estates to supervised formal procedure for contested estates, all require that the court be given notice of the steps taken, and some require that every step be authorized by the court.

Does All Real Property Pass Through Probate?

When a person dies in Michigan, most of their cash, bank accounts, retirement accounts and real and personal property become part of the estate's probate property unless they are trust assets. Probate property includes all assets that become part of the estate in probate. All assets, including real property, that the deceased owned by themselves rather than held jointly with someone else are probate property.

Assets that a deceased person owned jointly with one or more individuals may not be probate property. This is the case with real property. If the deceased was the sole owner of the real property, it must pass through probate in order to be transferred to someone else. If they held title to a property with one or more persons that includes the right of survivorship , the property passes directly to the other surviving joint tenants upon one owner's death.

Joint Tenancy With Right of Survivorship

What kinds of ownership allow the right of survivorship? In Michigan, only joint tenancy title deeds can include the right of survivorship. If this is the case, as soon as one of the owners dies, their interest in the property passes in equal shares to all other surviving owners. To determine whether a Michigan deed includes the right of survivorship, look in the deed for the words "joint tenants with full rights of survivorship,” JTWROS, or similar language.

These right-of-survivorship deeds are used in estate planning to preserve ownership within a specific group of individuals. They are used frequently between married couples, but can also be used between multiple co-owners who agree on the equitable distribution of deceased tenants’ ownership interests of non-probate assets.

So if a parcel of real estate that a deceased owned is held in joint tenancy with the right of survivorship, there is no need to worry about removing their name from the deed. All that is necessary to prove clear title in the remaining owners is the death certificate.

What Happens in Michigan Probate Proceedings

If real estate is not held in joint tenancy with the right of survivorship in Michigan, it must pass through probate in order for a deceased owner's interest to be transferred. That means that it is important to understand what a probate is and how it works.

Each Michigan probate is different, dealing with different size estates with different issues involved. However, the procedure can involve any of a variety of steps taken by the personal representative. Some are similar in all probates. The steps range from looking for a will to paying taxes to distributing the estate assets to beneficiaries and/or heirs.

The probate process can involve any of these issues :

Dying Testate vs. Intestate

Who inherits real property if it is part of the probate estate? That depends on whether the decedent left a valid will. In Michigan, a will is valid if made by a person over the age of 18 and signed by that person in the presence of two adult witnesses who also sign the will. It can also be valid as a holographic will if it is handwritten by the person making the will and signed by them.

The issue of whether an estate must be probated in Michigan is not impacted by the existence of a will or by the lack of one. In either case, the cash, property and other assets held by the deceased at the time of death must pass through a legal process in order to transfer property to living beneficiaries and/or heirs. That process is probate.

But who will inherit real property from the probate estate does depend on whether or not there was a valid will. Early probate duties of the personal representative include locating the will and determining if it is valid.

Dying Testate in Michigan

When a resident of Michigan dies leaving a valid will – testate – the estate laws of Michigan require that the instructions in the will be followed to the extent possible. For example, the court will almost always appoint the person who was named in a will as personal representative to that post. Obviously, if they are dead or refuse, that is not possible.

Likewise, during probate, it is the inheritance specifications set out in the will that control distribution of assets to the maximum extent possible. The persons or organizations named in a will are termed "beneficiaries," and those who inherit without a will are termed "heirs."

Transmitting Real Estate in Probate

If a will leaves everything to a spouse or to a close friend, the real estate generally passes to that person. If it is bequeathed to a nonprofit organization or to a child, the personal representative transfers the property to that person after the probate court approves the transfer.

Typically, this is accomplished by using a fiduciary deed signed by the personal representative. The only requirement for a fiduciary deed is that the personal representative states that they are signing in their capacity as the personal representative of the estate. This can be a quitclaim deed , a legal document that transfers property without any warranty, but it does not have to be.

However, if the real estate is the only asset, and the decedent left significant debts, the personal representative may have no choice but to sell the property to cover these obligations. In that case, any money remaining from the sale after debts are paid would pass to the beneficiary.

Dying Intestate in Michigan

If a decedent dies without making a will, they are said to have died intestate. An obvious result of this is that they left no binding instructions about who is to inherit their real property. But Michigan law includes a provision setting out which close relatives will inherit when a Michigan resident dies intestate. These are termed "heirs."

These laws generally set out the order in which next-of-kin will inherit by how close the relationship is. Michigan puts the surviving spouse and the deceased's children and descendants on the top of the heir list. Grandchildren are considered descendants, but only inherit in their parent's place if the parent died before the decedent.

Family Member Priorities for Inheritances

If there is no surviving spouse, the decedent’s children or the children of any deceased children inherit everything. But if the decedent left neither a surviving spouse nor descendants, the inheritance moves down the list, in this order:

The next in line to inherit cannot inherit if anyone higher on the list is still living.

Who Gets What as Intestate Heirs?

The question of which relative inherits the real property from an intestate estate depends on what relatives are still alive when the decedent dies. Sometimes relatives share the inheritance:

Once it is determined which heirs will inherit the real property, the personal representative must get the court's permission to transfer title. When the court gives approval, the personal representative signs a fiduciary deed. There is no need to remove the name of the decedent from the deed. When the heir takes the deed to be recorded, the recorder will issue a new deed in the heir's name.

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.

Michigan Legislature

Main content.

History: 1998, Act 386, Eff. Apr. 1, 2000 Popular Name: EPIC

Probate Information

Probate Information Probate & Estate Administration

Steps to Take After the Decedent's Death

As soon as possible after your loved one's death, the following items should be located and given to the person responsible for completing the deceased's final affairs:

When is Probate Required?

Generally, probate is necessary when a person dies owning property in his or her name alone or when the person has rights to receive property at some time in the future (such as an inheritance from someone else). There are three kinds of property that may not need to be probated: (1) jointly-owned property that goes to the surviving owner; (2) property that goes to a named beneficiary; and (3) property transferred to a trust. These kinds of property are explained below.

This brochure is for informational purposes only. The information provided in this brochure is not legal advice. You can get legal advice from a lawyer who is a member of the State Bar of Michigan at http://directory.michbar.org . You can find a lawyer who knows about the probate and estate administration process by searching for a lawyer in your area and using the practice area search terms “probate & estate planning/estate administration” or “trusts & estates.” The information in this brochure may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader’s facts and circumstances.

Publication Notice

Permission to print or copy part or all of this work for classroom use is granted without fee provided that copies are not made or distributed for profit or commercial advantage and that copies clearly display this verbatim notice. Otherwise, permission must be obtained to copy all or part of this material in any manner. Abstracting with credit is permitted. To further copy, republish, post on servers, or redistribute to lists requires prior specific permission from the Probate & Estate Planning Section of the State Bar of Michigan. Persons granted permission to copy this work must display the above Publication Notice followed by "Included here by permission."

State Bar of Michigan 306 Townsend St Lansing, MI 48933-2012 (517) 346-6300 (800) 968-1442

IMAGES

2022 Transfer on Death Form
Ohio Transfer on Death Deed Form Download Printable PDF
free printable beneficiary deed to Download
California Revocable Transfer on Death Deed
Transfer Of Real Estate After Death Virginia
transfer on death deed form indiana to Download

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COMMENTS

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Transfer on Death Deeds
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Transfer of Ownership Guidelines
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Property Transferred Without Probate
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How to Remove a Deceased Person From a Property Deed in
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Michigan Legislature
700.6309 Nontestamentary transfer on death. Sec. 6309. (1) A transfer on death resulting from a registration in beneficiary form is effective by reason of the
Probate Information: Steps to Take After the Decedent's Death
(2) property that goes to a named beneficiary; and (3) property transferred