Real Estate Salesperson · Forms of ownership, transfer and recording of title · 7 min read
Wills, Descent and Involuntary Alienation
- Distinguish between voluntary alienation and involuntary alienation, specifically comparing transfers by will against transfers by intestate succession.
- Identify the legal requirements of adverse possession, including the concepts of hostile occupancy, tacking, privity, and color of title.
- Explain involuntary transfers of real property resulting from judicial actions, governmental powers, and natural water-related forces.
Voluntary Alienation and Transfers by Will
In real estate practice, alienation is the act of transferring ownership, title, or an interest in real property. When an owner intentionally transfers real estate, this transfer is known as voluntary alienation. Voluntary alienation may occur through a deed, including a deed conveying property as a gift, or through a valid will that directs a transfer at death. By contrast, involuntary alienation occurs when real property title is transferred without the owner's consent. Real estate salespersons must understand these legal pathways when assisting clients under the guidance of a supervising broker.
A person who creates and executes a will is called a testator. A will does not transfer title during the testator's lifetime; it directs the disposition of property at death and generally can be changed or revoked during the testator's lifetime. When an individual dies leaving a valid will, they are said to have died testate. In a will, a gift of real property is specifically termed a devise, and the person who receives that real property is called a devisee. Gifts of personal property transferred by will are designated as a bequest or legacy, and the recipient is recognized as a legatee.
Wills can be modified or created through different legal forms recognized by state law. A codicil is an amendment or addition to an existing will, and it is generally executed with the formalities required for a will. A holographic will is a handwritten, signed will that does not require formal witnesses in states where permitted. In contrast, a nuncupative will is an oral will recognized only in limited circumstances in some states; requirements concerning witnesses and the property it may cover vary by state.
When probate is required, a probate court oversees administration of the probate estate; nonprobate property passes outside that process, and the extent of court supervision varies by state. An executor is the personal representative named in a will to administer the estate, generally subject to probate court appointment or approval. If a will fails to name an executor, the probate court steps in and appoints a personal representative to administer the estate.
Common mistakes
- An executor is named in a will, while a court may appoint an administrator when no executor is available, including when a person dies intestate; terminology varies by state.
- Believing that all assets of a deceased person must undergo probate; property owned in joint tenancy with right of survivorship and property properly held in a living trust pass without probate.
- Thinking that adverse possession can be established on public parks or municipal streets; adverse possession generally cannot be established against property owned by federal, state, or municipal governments.
- Confusing the boundary impacts of water actions by assuming avulsion alters ownership lines; avulsion is sudden and does not change boundary lines, whereas gradual accretion and erosion do.
Key points
- Alienation is the transfer of ownership, title, or interest in real property, categorized as voluntary (deeds, gifts, wills) or involuntary (without owner consent).
- A testate decedent leaves a valid will conveying real property through a devise to a devisee, and personal property through a bequest or legacy to a legatee, administered by an executor or court-appointed personal representative.
- An intestate decedent leaves no valid will, causing probate property to pass to statutory heirs via intestate succession under an administrator; if no eligible heirs exist, property transfers to the state through escheat.
- Joint tenancy with right of survivorship and properly held living trusts pass real property outside of the probate process.
- Adverse possession allows an unauthorized occupant to acquire legal title to private land through actual, open and notorious, hostile, exclusive, and continuous possession for a statutory period, with tacking allowed when privity exists.
- Involuntary alienation occurs through government action (eminent domain via condemnation, or inverse condemnation claims), financial enforcement (foreclosure, sheriff's sales, tax deed sales, bankruptcy), and co-owner partition actions.
- For boundaries that follow a body of water, gradual accretion, reliction, and erosion generally can change the boundary, while sudden avulsion generally does not; alluvion is deposited material, not a separate boundary-changing process.
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