Thursday, January 14, 2010

Arizona's Beneficiary Deed

An ideal tool for those with a modest-sized estate in which the residence is the primary estate asset, the beneficiary deed is similar to payable on death accounts in that it allows for the transfer of real estate on the death of the owner to whomever the owner designates as beneficiary, thereby avoiding probate.

Pursuant to A.R.S. 33-405, a beneficiary deed is “[a] deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner's lifetime.”

In addition, the statute allows for multiple beneficiaries who may take title in any recognized form, and may designate a successor grantee beneficiary, which should be indicated in the event a beneficiary predeceases the owner of the property. A beneficiary deed may also be used to transfer an interest in real property to the trustee of a trust, even if the trust is revocable.

ADVANTAGES

A beneficiary deed allows for the avoidance of probate. Arizona allows for the transfer of real estate by affidavit, however, pursuant to statute the value of all the real property in the estate, less liens and encumbrances as of the date of the decedent’s death, cannot exceed $75,000. The use of a beneficiary deed to transfer real property will avoid the need for a probate proceeding in cases where the equity in the property is in excess of $75,000.

A beneficiary deed does not carry with it the disadvantages associated with adding someone as a joint tenant. Many aging parents are using the technique of adding their adult child or children as joint tenants to avoid a probate proceeding upon their death. However, this can result in unintended tax and other consequences. Should their child become involved in a lawsuit (divorce, tort action, or bankruptcy), the property on which that child’s name has been added is subject to those proceedings.

A beneficiary deed is easily revoked. A beneficiary deed is easily revoked by the owner, or if there is more than one owner by any of the owners who executed the beneficiary deed, by executing and recording the revocation as provided by law in the office of the county recorder in the county in which the property is located.

A beneficiary deed is an effective tool for transferring property in the case of unmarried couples. An unmarried couple does not enjoy the benefits a married couple does in the event the relationship ends, and it’s often difficult to determine the property rights of those involved. Particularly in cases where property has been purchased solely with the assets of one party, it might be more appropriate to place one’s partner on the deed as a beneficiary rather than a co-owner.

DISADVANTAGES

In the case of joint owners, the surviving owner can defeat the purpose of the beneficiary deed. In cases where there are joint owners of property, and they have executed and recorded a beneficiary deed, upon the death of the first joint owner to die, the surviving owner can revoke the beneficiary deed. It’s for this reason that the use of a beneficiary deed might be problematic for couples with prior marriages and children from those prior marriages, as there is no provision in the statue for an irrevocable beneficiary designation.

There is the possibility of conflict in the event multiple beneficiaries are named. In cases where multiple beneficiaries are named, there is the potential for disagreement as to how the property should be managed and whether the property should be kept in the first place or, alternatively, sold. The use of a revocable living trust might be the better alternative to manage these issues.

There are issues with the use of a beneficiary deed when leaving property to minor children. Due to the numerous issues involved with leaving assets to minor children, a child’s trust (either testamentary or living) should be named as the beneficiary of the beneficiary deed.

There are possible estate tax issues when using a beneficiary deed to transfer property on one’s death. Using a beneficiary deed to transfer property on one’s death precludes the use of the property to fund a credit shelter trust, because the property does not pass into the trust until the death of the surviving spouse.

Although extremely popular and an effective estate planning tool in some situations, due to the drawbacks, the use of a beneficiary deed is not recommended for every estate plan, and the advantages and disadvantages of using a beneficiary deed should be considered carefully before executing and recording one as part of one’s estate plan.

A.R.S. 33-405

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