Time, title, possession, ownership interest. The four elements of joint tenancy have endured throughout real property ownership law and create the most efficient way to transfer property to loved ones.
When real property owners want to transfer surface real estate or minerals to their heirs through a trust, there are several common problems a title examiner will find. Sometimes, the owners make the mistake of conveying property to the individual Trustee, instead of to the Trustee in his or her capacity as Trustee of the named trust. Other times, the property owner conveys the property directly to the trust and fails to file a memorandum of trust listing all the property to be transferred. Finally, property owners often try to combine a memorandum of trust and a conveyance into a single document. These problems can create problems with title to the real property, referred to as a cloud on title, and often result in costly and undue litigation and delays on royalty payments to mineral owners.
In a previous post, we discussed H.R. 2606, the bill that amends the Act of August 4, 1947 (61 Stat. 731) (commonly known as the Stigler Act). The Stigler Act governs restrictions upon alienation of surface and mineral interests in lands inherited by lineal descendants by blood of allottees of the "Five Civilized Tribes." The Five Tribes were forcibly removed to Indian Territory, and resettled on lands located within the geographical boundaries of what is now the State of Oklahoma.
This is a question I hear frequently from individuals seeking to pass property to their heirs and avoid probate, which can be a lengthy and expensive process.