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Is there a real estate or probate document for this?

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.

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Attorney answers 4

Posted

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 attorney should be obtained.

Posted

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

Posted

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 create an attorney-client relationship. The advice is without warranty and you should not rely on this advice without consulting a Wisconsin attorney directly who knows the particulars of your case.

Asker

Posted

1 - WI, 2 - No, 3 - Yes (everything split evenly 7 ways) - all children still living and all have children, 4 - WI. IF they want to sell the property - can all 7 just sign the real estate papers and be done with it or does something else have to happen prior to sale?

Daniel J. Krause

Daniel J. Krause

Posted

The basic answer is that there must be a probate of the father's and the mother's estates in order to transfer the land from father to 7 kids, then the 7 can sell it. Depending on the actual value of the land (father's 1/4 is less than $50,000), the process may work with an Affidavit of Transfer. If that is not workable, there may be a way to avoid a probate working with a title insurance company. I have done things similar to this before.

Posted

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.

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