Legal Question in Wills and Trusts in Alabama

Deed to deceased

My father died recently. His mother is 85 and has decided to dispurse deeds to her land. One of the deeds has my daddy's name on it. She wants to give that deed to my mom, me, and my 2 siblings. Should we pay for her to have the land (120 acres) divided equally with four deeds or can we accept the deed with our dad's name on it. If we accept it as it is what will we have to do to get it changed? I heard we would have to include it in his estate, go through probate court and then it would not be divided equally among us. My dad owned some cows that was only in his name and another small piece of property. Would this be included in that division in probate? What is the best thing for us to do?


Asked on 10/27/06, 1:06 pm

2 Answers from Attorneys
Harold Holcombe Harold D. Holcombe, P.C.

Re: Deed to deceased

The law changed in the late 1990's so now you should always go through the Probate Court to administer an estate with real property. This will ensure that the title is done correctly. As heirs you can agree on how you want the property to be distributed. There are many, many issues that need to be dealt with so you should hire a probate attorney to get this probated properly.

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Answered on 10/27/06, 1:36 pm
William Nolan Nolan Elder Law LLC

Re: Deed to deceased

I am assuming that the real estate is here in Alabama, so my answer is contingent on that being the case. If not, ignore me. I don't practice in Georgia and don't want to give the impression that I do.

First question to consider is why granny is gifting her R/E rather than devising it through her will. You will be taking at her basis if you accept now but you will take at a stepped up basis if you wait until she dies.

Also, if she is considering Medicaid, the gift of R/E will incur a transfer penalty, so she should be mindful of that as well. If the R/E goes through your dad's estate, it will pass to your mother and possibly the kids as well. You didn't say if your dad had a will, if it was probated, etc.

Basically you need a lawyer. Find the county where the real estate is and start asking around for a good r/e or probate attorney. I am in Birmingham and will help you if that is convenient. Check my website.

William G. Nolan www.NolanElderLaw.com

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Answered on 10/27/06, 2:05 pm


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