It turns out my mom didn’t put the house in Arizona into the Trust. My sister and I are co-Trustees, co-executors of the estate, and sole benficiaries. The Will and the Trust both state that the estate is to be equally divided between us.
Since the house is not in the Trust, what do we have to do to dispose of it?
I talked to the lawyer who wrote the trust. He said that he needed a copy of the deed or a legal description of the property, the date the deed was recorded, and the date that the house was put into the Trust (which it turns out, it wasn’t). In addition, he’d need a copy of the first page of the Trust and the page that assigns my sister and me our roles.
Right. Now, the house isn’t in the Trust. My sister called the lawyer’s office and spoke with a legal assistant. She said that since the house is in Arizona, we’d have to get a lawyer in Arizona.
Any Doper lawyers have experience in these matters? Any idea of what it is, exactly, that we have to do?
Sell it. One of you, acting in your capacity as co-executor of the will and explicitly stating so, places it up for sale, with a letter from the other consenting to the act as the other co-executor. When sold, the money goes into the estate and is divided equally between you.
One of you keeps it. In this case, it should be appraised, and the one keeping it agrees to pay the other half of the fair market value. (How you arrange that is between you; it’s not an obligation to pay off the whole thing at once if that would cause problems.) The estate then transfers it to the ownership of the one keeping it. (A deed conveying it would say that the Estate of MotherLA, JohnnyLA and SisterLA coexecutors, sells property of N acres as described in Exhibit A and commonly known as 1234 Fifth Street, Cactusdale, AZ, to SisterLA in her own right, and be signed by you and her as representatives of the seller and her again as buyer.)
Those would be your options. Naturally, of course, the transfer will have to comply with AZ law, and you are very well advised to get an AZ lawyer to make sure it does. But if you know what you want to do first, you’ll save on time with him and consequent costs.
My sister doesn’t want to pay for a lawyer. (She’s been poor a lot longer than I have.) I think we should pay a lawyer to make sure everything is correct, since the fee will be less than the proceeds from the house.
What is a typical fee for handling this type of thing, anyway?
Option 1 is what we want to do. Neither of us has the resources to pay off the mortgage. I’m thinking we should get the affidavit from the lawyer (‘successor trustee affidavit’?) so that our rights are beyond The Valley of the Shadow of Doubt so that we can sell the house.
Specific questions: How can we sell the house? Just put it up on the market, sell it, and pay off the mortgage? Or do we have to have the title transferred into our names first? If so, how do we do that?
I’m pretty sure the estate, taken as a separate legal entity from the two of you, can sell the house itself. Someone who’s worked real estate can clarify the process, but ordinarily the buyer’s mortgage pays off the seller’s mortgage and then pays the remainder, her equity in the house, to the estate. (Do you belong to the UnaBoard, by any chance? Winnowill over there is an Arizona real estate person with expertise in this stuff, but AFAIK doesn’t belong to SDMB.)
Fees for this sort of thing vary a lot among jurisdictions. If there are no complications, you can probably get the job done for less than $2000. Maybe a lot less, but I wouldn’t count on it.
You probably cannot simply sell the house if it was in your mom’s name. You’ll have to open a probate estate and get court approval for the sale (probably–I’m not an AZ probate lawyer). Depending on the equity in the house, you may be able to take advantage of some small estate/single asset estate streamline provisions that may or may not be available in AZ.
You are going to need to hire an AZ lawyer. It will be extremely difficult for you to do this on your own. If you absolutely must do this yourselves, here is a start.
I spoke with the Maricopa County Recorder’s office. He said that if there is a ‘right of succession’ on the deed, then my sister and I could have the deed transferred to us.
Well, not naturally at all. Usually the books come out in a new edition when laws change. It’s not like publishing houses and authors are not interested in making money. I’m quite surprised to see that most of the consumer-oriented law books are out of print.
Again, I am not an Arizona lawyer, nor am I your lawyer. You should have an Arizona lawyer look at the deed and related documents. That said, get a look at the deed, pronto. That will answer many questions for you.
And if a copy is not among the papers you have, one is easily obtained from the Registry of Deeds (usually requires a visit there).
You will also find it easy to view examples of property transfers subsequent to an owner’s death, which should help in learning how this is typically handled.