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sanderella79 · May 15, 2014, 10:07 AM

Can a post NUPTIAL designate property to beneficiaries. Can I post nup or divorce decree be some sort of trust agreement. Will those properties bypass probate. If a couple gets divorce but own property in a community property state will it always be community property even if one quit claims that property.

sanderella79 · May 15, 2014, 11:32 AM

OK.. this is going to sound complicated. I'm the executor of my moms estate. She has property in 5 states. She had no will that I could find.. so I'm trying to figure out if it is nessasary to open ancillary probate in all states. OK here we go... please help with advice.. so my mom and dad got divorced about 25 years ago when I was about 12. I found a divorce settlement and it divided their marital property. She received 2 properties in divorce,one in Colorado they owned before I was born and the new home in ky. In the divorce settlement it states if my mom,the divorce petitioner dies the marital property acquired would go to my brother and I. OK well my mom remarried and he had great credit and was big into buying real estate all over. Well he would also let my mom use his credit and to get va loans when they were not even together. Legally they were married though. So something that baffles me and I can't figure out is this... while they were married they purchased property in Arizona and Tennessee. Then while they lived apart yet married my mom bought about 6 houses in ky also.. then later they drew up a post nuptial agreement defining separate properties. And that in case of divorce or death her separate properties would go to beneficiaries. So what confuses me is how come they're up a post nump to acknowledge separate properties such as the house in Colorado that she got from my dad before my time. Well if that is so why after the post nump did she quit claim that property to him and then later he quit claim back when they separated legally.. confusing huh.. can you tell me the reasoning behind it and since Colorado and Arizona are community property states do I have to open probate there even though he quitclaimed them all to her but but at one time it was joint with rights of survivorship.. I hope this kind of made sense and Any advice helps

AK lawyer · May 15, 2014, 11:41 AM

Post-nuptial what? You are using an adjective without an object of that adjective. As such, your question doesn't make any sense. And what jurisdiction (US state or country) is this?

Yes, it is theoretically possible to set up a trust via a divorce decree so as to by-pass probate, and such an agreement can take the property out of the community. In fact a divorce will always (as far as I know) do that.

I suggest you get an attorney in your jurisdiction to further advise you and to make sure this is done right.

sanderella79 · May 15, 2014, 11:51 AM

Originally Posted by AK lawyer

Post-nuptial what? You are using an adjective without an object of that adjective. As such, your question doesn't make any sense. And what jurisdiction (US state or country) is this?

Yes, it is theoretically possible to set up a trust via a divorce decree so as to by-pass probate, and such an agreement can take the property out of the community. In fact a divorce will always (as far as I know) do that.

I suggest you get an attorney in your jurisdiction to further advise you and to make sure this is done right.

What do you mean by it can take the property out of community.. does that mean after divorce property acquired together with rights of survivorship is null after divorce since it was separated in post nump?

Can a post nump designate separate property and now my mom died and she left in that agreement if she dies and shethose named separate properties go to my brother and I in that agreement if do those properties pass outside of probate

AK lawyer · May 15, 2014, 12:37 PM

Sorry, it appears that while I was writing my first answer you made your second post. Either that, or I overlooked your second post.

Generally, yes, if you are appointed PR in here state of residence, you would open ancillary probates in each state in which the estate has an interest in property.

If the property is, either during or after the divorce, conveyed to both of them as JTWROS, it would seem that it would be out of here estate at her death, and would go to the joint tenant.

If the divorce decree stipulated that a child would receive a remainder (what remains after a life estate), that too would take it out of probate.