Is there a real estate or probate document for this?

Asked 11 months ago - Kellnersville, WI

Father and 3 (of 7) children own land as tenants in common. Father dies, his share passes to his spouse (mother of the 7 children). 5 years later, Mother dies. Other 4 children have no interest in owning land. Is there an affidavit/document that can be signed/filed to reflect this?
Remaining 3 original owners will likely sell land. Just want to make it easier for them to sell. Understand that mother's portion of land is now split 7 ways.

Attorney answers (4)

  1. Daniel J. Krause

    Contributor Level 11

    3

    Lawyers agree

    1

    Answered . Four questions: 1) What state is the property in?
    2) Was Father's interest ever properly transferred to Mother after Father died?
    3) Did mother have a will?
    4) What state did Mother live in when she died?
    Without knowing the answers to these questions, I will assume the property and Mother are in Wisconsin and the Mother and the spouse of the Father are the same person. I will also assume the property was properly titled in Mother's name at the time of her death and that she had no will (or her will manes 7 children as equal beneficiaries of the property), and that the 7 children are her proper heirs.
    If none of the other 4 children have children of their own (Mother has no grandchildren by the 4), the 4 can disclaim the property, and the 3 will inherit the land.
    It is more likely that at least one of the 4 has a child. The childless one(s) can disclaim. The others of the 4 can quitclaim their interest to the 3, using a Quitclaim Deed. Each of the 4 need a separate deed to transfer their interest.
    You probably need to run the complete facts past an attorney who is familiar with probate and real estate transfers.

    I am not your lawyer. Any advice given through the Avvo site is for hypothetical purposes only, and does not... more
  2. John P Corrigan

    Contributor Level 19

    3

    Lawyers agree

    Answered . Seems like the best fit here would be to form a Family LLC and then have all 7 kids convey (a tax free transaction) their entire interests in the land (by Quitclaim Deed) to the LLC in exchange for a membership interest in the land...it being understood that 3 of the 7 will get a larger % ownership in the LLC than the other 4...but easy math to figure out. All of them would then essentially own shares in a company which will allow easier transfer to one or ore willing buyers that come along because the deed (and seller) is in the name of the LLC and not 7 individuals. Also this is a good liability protection strategy as the LLC shields the 7 members from liability that may arise form the land (i.e. accidental death or injury and insurance insufficient to cover a claim). also will make taxes easier for all as all 7 will get a Form K-1 with their allocable share of income/(losses) attributable to the operation of the property. I see little or no downside to doing this and it has large benefits as I outlined.

    This is not intended to be giving legal advice and this topic can be a complex area where the advice of an... more
  3. Dera L. Johnsen-Tracy

    Contributor Level 8

    1

    Lawyer agrees

    Answered . I agree with my colleagues here. There is no simple form that can be filled out to accomplish your stated objectives. You should consult with a Wisconsin probate attorney.

  4. Cheryl Rivera Smith

    Contributor Level 20

    2

    Lawyers agree

    Answered . You should also consult with a probate attorney if neither had probate opened.

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