Earlier this year we wrote a blog on the importance of estate planning. The purpose of today’s post is to focus on one specific aspect of that topic – beneficiary designations. Naming beneficiaries on your assets might seem like a minor task. In reality it can have a major effect on your heirs and how your estate is settled. This is because any financial asset with a named beneficiary (or that you own jointly or in trust) passes to your heirs outside of probate – the time consuming, expensive legal process of winding down the affairs of a decedent. To avoid probate means your heirs don’t have to waste time and money trying to take possession of their inheritance.
On which types of assets can you name beneficiaries?
The most common answer is accounts like life insurance, IRAs, 401(k)s, and annuities. This is because the paperwork usually includes a hard-to-miss section specifically asking you to select beneficiaries. You may also know that banking and taxable brokerage accounts (held in individual or joint name) allow you to name beneficiaries via a “Transfer-on-Death” (TOD) designation.
But did you know that, thanks to a 2013 law, Virginians now have the ability to also name legal beneficiaries on real estate holdings such as a primary residence, vacation home, rental property, and vacant land?
Indeed, Virginia has joined the ranks of 25 other states to allow real estate owners to file what’s called a “transfer-on-death” deed, which automatically transfers title of a property to a designated beneficiary(ies) at the owner’s death.
Why does this matter?
The cost of probate is a function of the total dollar value of assets passing through it. So, in general, the more assets that are subject to probate, the more your estate will pay in legal and court fees, and the less leftover for heirs.
Given that real estate is most Americans’ largest asset (according to a 2014 U.S. Census Bureau study), this is a potential game changer for estate planning.
Prior to 2013, essentially the only option Virginians had to keep real estate from going through probate was to put it in a trust. True, jointly owned real estate avoids probate, but this is only when the first owner dies; absent a transfer-on-death deed, real estate will pass through probate upon the death of the second spouse.
While a trust may make sense for some people, in order to realize the benefits you must first incur the upfront cost to create it (potentially thousands of dollars) and possibly attorney fees down the road if extra maintenance or administration is required. So, a transfer-on-death deed presents a simpler and potentially more cost-effective way to implement real estate into your estate plan.
How does it work?
Filing a transfer-on-death deed is easier than you may think.
As the name implies, a transfer-on-death deed involves recording a new property deed with your local county clerk’s office. The deed includes very specific language to describe the property in question and who is to be the beneficiary(ies).
Because a valid transfer-on-death deed involves the use of very specific legal language, it is recommended you not try to do it yourself. Rather you should consult a qualified attorney, most of whom charge a flat fee of a few hundred dollars. In general, a transfer-on-death deed is far simpler and more economical than creating a trust.
Importantly, the named beneficiary(ies) has no legal right to the property as long as you are still living. This means you are free to do as you please with the property, and you can amend or revoke the transfer-on-death designation at any time, for any reason. Also note if you own the house jointly with a spouse or other person, a transfer-on-death beneficiary will only receive title to the property once the second owner dies. As far as taxes go, adding a transfer-on-death deed should not give rise to gift or real estate transfer taxes because you will still maintain ownership of the property. Like an IRA or 401(k) beneficiary, the transfer-on-death deed beneficiary’s rights only kick in after the original owner dies (or second owner if the property was jointly held).
Consider a transfer-on-death deed to be one more arrow in your estate planning quiver. Of course, trusts and other titling strategies can still make sense in many situations. The point is, a transfer-on-death deed offers a potentially more cost effective and simpler mechanism for transferring real estate to one’s heirs. As always, consult a qualified attorney to see if this strategy is right for you and your overall estate plan.
And be sure to contact us with any questions!
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