Under Kansas law, there are two main ways to transfer real property outside the probate process: by joint tenancy or a transfer-on-death deed. Since real estate transfers and estate planning are complicated areas of law, you should consult with an attorney for more specific information before proceeding.
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Determine whether a joint tenancy is the best option for your situation. Creation of a joint tenancy, sometimes called a joint tenancy with right of survivorship, creates property ownership rights and obligations in all owners. For example, if a father owns property in his name and wishes to pass it to his child by joint tenancy, the father will actually be giving up sole ownership of the property and establishing joint ownership with his child. This ownership is established during the father’s lifetime and gives immediate property rights to the child. With these property rights, the child could sell his interest or the interest could be taken by creditors. If the child still has his interest upon the father’s death, full ownership in the property would pass to the child.
Determine your tax obligations. Because joint tenancy gives an immediate property ownership right to the transferee, the transferee also becomes responsible for any tax obligations on the property, like any other owner. Additionally, there may be federal and state gift or estate tax implications from transferring property via joint tenancy, so you should consult your tax professional before making the transfer.
Draft the new deed. A third-party legal document preparation service, title company, or an attorney can assist you with the formalities. Under Kansas law, your new deed must contain language that makes it clear you intend a joint tenancy rather than tenancy in common, which is not sufficient to avoid probate. For example, a deed “to X and Y as joint tenants with right of survivorship” establishes a joint tenancy, but a deed “to X and Y” may not.
Check with your county Register of Deeds to ensure compliance with their requirements. Even if the deed has all the proper language in it, you must still ensure it meets the requirements for recording in the county where the property is located. For example, the new deed must be signed and notarized by the grantor(s) and grantee(s). Often, the Register of Deeds will also require certain margin widths to accommodate their recording stamps and labels. Depending on the details of your situation, you will either be required to file a Sales Validation Questionnaire or include an exemption to this questionnaire on your deed.
Record the deed according to local recording requirements, either by paper filing or electronic filing if your county allows it. Your county’s requirements will also likely include payment of a recording fee.
Determine whether a transfer-on-death deed is the best option for your situation. In Kansas, a TOD deed may be used to transfer any interest in real estate. A TOD deed does not give any present ownership interest or obligations to the transferee. It revokes any previous designations the owner may have made regarding who should be the beneficiary of the property, but the TOD deed itself is also revocable so it can be withdrawn at any time before the owner’s death.
Draft the TOD deed. A third-party legal document preparation service, title company or an attorney can assist you with the formalities. Kansas statutes prescribe certain language that must be used to create a TOD deed, which can be found in Kansas Statutes Annotated 59-3502. You should ensure that your TOD deed complies as closely as possible with this sample language.
Record the TOD deed with the county Register of Deeds where the property is located. Since the TOD Deed is only legally effective if properly recorded, you must ensure you properly record it according to local requirements.
References & Resources
- Kansas Legal Services: What Is Probate?
- Kansas Bar Association: Joint Tenancy
- Kansas Statutes Annotated: Chapter 59 Probate Code: Article 35 Transfer-On-Death
- Kansas Statues Annotated: Chapter 58 Personal and Real Property: Article 5 Real or Personal Property Granted or Devised
- Douglas County Kansas: The Office of the Register of Deeds: Recording Requirements
- Homestead Title Co.: Title Tidbits: Tenancy