Issues Facing Clients with Real Estate in More Than One State

If you own real estate in more than one state (New York and Florida, for example) you may need to probate your Will or administer your estates in each state. And while we may be able to represent you in our state, depending on the state, we may need to hire a local attorney to help us with the probate in the “other” state.

When a person owns real estate in his or her sole individual name (i.e., the deed is titled in the individual name of the owner), the real property has no direction and no instruction on how to be distributed to the next owner. To give you an idea, real property owned by husband and wife, as “joint tenants with right of survivorship”, passes to one or the other by operation of law upon the death of one owner. This is because the title on the deed contains the instruction that the surviving joint owner becomes the sole owner of the property following the death of the other joint owner.

However, what happens when the real property is only owned by one person, or by multiple people as “tenants in common” (i.e., not as joint owners)? In that case, there is no instruction written into the deed registration like there is with “joint” property. The deceased person’s ownership interest passes to his or her heirs at law. As such, the local court must get involved. That means time and money to the estate.

This predicament can be resolved with proper asset ownership (e.g., joint ownership versus individual ownership), an enlightened and educated family, or with the use of certain types of trusts the most popular of which is the Revocable Living Trust.

The language of the Revocable Living Trust agreement itself directs who gets the real property, and does not typically need the involvement of the local court or the hiring of local counsel. Because the Revocable Living Trust agreement, rather than a Will, owns your assets and directs how those assets will be distributed, you can avoid probate. As you can see, your loved ones will receive their inheritances faster, and won’t have to pay all of the costs associated with probate.

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About Jeffrey A. Asher

Jeffrey A. Asher is admitted to practice in NY and CT. Mr. Asher is a member of the New York State Bar Association, where he serves on the Executive Committee of the Elder Law and Special Needs Section, the Executive Committee of the Trusts and Estates Law Section, is co-chair of the Legislation Committee of the NYSBA Elder Law and Special Needs Section, is co-chair of the Committee on Elderly and Disabled of the NYSBA Trusts and Estates Law Section, and is Chair of the Elder Law Section of the New York County Lawyers’ Association. Mr. Asher recently appeared in the HBO Documentary “Bobby Fischer Against the World: Fight for the Fischer Estate.” Mr. Asher also is a legal commentator on Trusts and Estates and Elder Law matters for Court TV, TruTV, and CNN Headline News.

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