Why Title Never Vests in a Decedent's Estate (AYU Nov 2023)

Presented by Jon W. Brodegard

In Virginia, title to real property never vests in a decedent’s estate. This means that no deed should name the decedent’s estate as a grantor nor should Schedule A of any title commitment state that title is vested in a decedent’s estate.  At the moment of death, title to the real property previously owned by the decedent passes to someone else other than the decedent. If the decedent died testate (with a will), title passes to the devisees under the will or the executor of the estate of the decedent pursuant to the terms of the will. If the decedent died intestate (without a will), title passes to the decedent’s heirs according to the course of descent set out in the Code of Virginia in effect at the date of death.

The reason why title does not vest in the decedent’s estate is because the estate is not a legal entity, so it cannot own real property. The decedent’s estate is a term that refers to all the things the decedent owned, such as a car, a boat, a telephone, stocks, bonds, and other physical and non-physical assets. In this sense, as one of the things that the decedent owned, real estate could be part of the decedent’s estate. By analogy, a radio may be part of a car, but the car’s owner, not the car, owns the radio. The car cannot sell its radio. Likewise, even though real property may be part of an estate, the estate does not own the real property.

Casual descriptions can make the relationships more difficult to understand. Both real property and a bank account may be assets of or part of an estate. Depending on specific circumstances, proceeds from the sale of the real property may need to be paid to an estate bank account or, to put it another way, proceeds may need to be paid to a bank account set up to hold money that is part of the decedent’s estate. But saying that proceeds from a sale should be paid to an estate bank account, or even that proceeds should be paid to the estate, does not and should not suggest that the estate owns, or could own, or could sell real property. An estate is not a legal entity that can own or sell real property