The Transfer of Property Through Wills

By Laura Payet

The Transfer of Property Through Wills

By Laura Payet

A primary reason to create a will is to pass property on to those who survive you, usually family or close friends. Property consists of two basic types: real and personal. Real property includes land and buildings. Personal property comprises tangible and intangible personal property. Tangible personal property means all the things that you own: for example, jewelry, cars, boats, tablespoons, kitchen knives, etc. Intangible property refers to cash, investments, and other accounts. You can transfer property through your will with specific or residuary bequests.

Older woman looking through documents

Specific Bequests

A bequest is a gift made through a will. When you include specific bequests in this document, you identify the particular piece of real property or item of personal property and the individual to whom you wish to give the property.

  • To identify real property, use the property's physical address and a description: "my home at 5555 Central Ave., Boston, MA."
  • To identify tangible personal property, use a simple description: "my blue lapis and silver necklace" or "my baseball signed by Babe Ruth."
  • To identify intangible personal property, use account numbers and the relevant financial institutions: "my savings account #1234567 at Wells Fargo Bank, Dallas, TX."
  • To identify individuals, use names, addresses, and Social Security numbers. You can also identify the individual's relationship to you: "my sister, Jane Doe, Social Security #123-45-6789, 1234 Busy Rd., New York, NY."

The more precise you are when including bequests, the lower the likelihood of confusion in the future. If details change, such as addresses as individuals move, update them in a timely manner.

Residuary Bequests

Your estate consists of all the property, real or personal, that you own upon your death. A residuary bequest covers any remaining property in your estate that you have not named in a specific bequest, as well as any gifts that may have failed or lapsed.

It might look like this: "I give my my residuary estate to my sister, Jane Doe, Social Security #123-45-6789, 1234 Busy Rd., New York, NY, if she survives me." As with specific bequests, be sure to keep information for those named in residuary bequests up to date.

Transferring Real Property by Will

Title to real property transferred through a will does not pass to the recipient until the probate process is complete. Your executor (named in your will) starts the probate process by filing the will with the county probate court. The probate judge then empowers your executor to carry out the instructions in your will. First, the executor prepares an inventory of all the estate's assets and liabilities. Next, the executor settles all the estate's debts. Finally, the executor distributes property to the beneficiaries according to the will's designations. If real property has a mortgage, the beneficiary takes the property subject to that mortgage.

After the executor distributes real property, the beneficiary must arrange to have the title transferred to their name. The process to do so varies by state but generally requires filing an application to transfer title with the county recorder's office, which often involves paying fees and providing a certified copy of the death certificate and sometimes the original title.

Estate planning requires you to keep a variety of concerns in mind. One is that the probate process can be lengthy, so you may wish to transfer property by other means that can help you avoid probate court. Another is that, depending on your assets, your estate might have to pay estate taxes. For most people, federal estate taxes are of little concern. Currently, they apply only if the estate has gross assets and prior taxable gifts that total more than $11,180,000. However, some states also have estate taxes that apply at a lower threshold.

Instead of transferring property outright, you may wish to transfer it to a trust held for your beneficiaries, particularly if you have young children who may be minors at your death. You may consider to consult an attorney for estate planning guidance. Whichever method you choose for distributing your assets after your death, consider the various requirements and potential complications before finalizing your plans.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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