Our Real Estate Practice
Real estate transactions are an important and vital part of our practice areas. We assist many clients with title searches and conveyances to enhance our estate planning activities. Often times, clients need and want the assurance that their real estate transactions are properly handled in accordance with Arkansas Law. Legal conveyances can be accomplished through various means, including executing a Deed, admitting a Will to Probate, by Affidavit of Inheritance and filing a Petition to Determine Heirship of non probated property. Various types of Deeds include Warranty Deeds, Quitclaim Deeds, Beneficiary Deeds, and Life-Estate Deeds. In addition, we can assist realtors who are selling property through Probate and we assist For Sale by Owner transactions through private negotiations and transfer of property without a realtor. If you have a real estate need, do not hesitate to call us for a consultation. We can help.
What happens to property owned at death?
If you own real estate titled in your name upon your death, it will go through probate before it passes to your beneficiaries – even if a will exists. In fact, a Will is a ticket to probate. In Arkansas, the probate process takes a minimum of six months except for estates less than $100,000 which can take a minimum of three months. Before real estate can be sold or distributed in probate, your estate is responsible for paying expenses, such as taxes, insurance, utilities, and general upkeep of the property.
Your estate is also responsible for final debts and expenses, including funeral, court costs and attorney fees. If insufficient cash is available, then beneficiaries will have to find a way to pay the probate costs and selling the real estate may be the only way to cover the costs associated with a transfer of a decedent’s real property through Probate; however, proceeds from life insurance policies or cash received through POD designations from investment accounts or banking institutions are not required to be spent on probate costs, but practically such proceeds may have to be spent if the estate has insufficient proceeds to avoid the sale of real estate to pay the debts of the decedent. Clearly, a serious dilemma could exist.
What are the ways to avoid probate of real estate?
There are multiple ways to avoid probate of real property upon death. These include conveying property to a trust or to a legal entity such as a limited liability company, corporation or partnership. Holding property as Joint Tenants, or the use of Life Estate Deeds and Beneficiary Deeds are also common ways to avoid probate of family held real property.
Arkansas allows a special type of deed known as a “Beneficiary Deed.” In other states, this deed may be referred to as a “transfer on death deed” or “Lady Bird Deed.” Through this deed, you can designate a beneficiary or beneficiaries who will inherit your real estate outside of probate upon your death. One drawback to a Beneficiary Deed is it does not avoid liens on the property and is subject to estate recovery by the Arkansas Medicaid Program if the deceased person was on Medicaid during his or her lifetime for Long-Term Care. .
On the other hand, “Life-Estate Deeds” do avoid estate recovery from Medicaid which can be a very useful tool to avoid probate while preserving the property for heirs without fear Medicaid will take it away from them.
One of the biggest mistakes we see in trying to avoid Medicaid recovery and probate is to deed your home to your children outright. This is a bad idea because if your children end up in legal problems, get divorced, get sued for whatever reason, or go into bankruptcy, you could lose your home and have to move out. Also, if your children sell the home after you pass away, they will have to pay capital gains for the difference in what they sold it for less what you paid for it. So we highly discourage the deeding of the home to children.
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