“Changing deed on house after death of spouse.” If you are someone who found this guide upon typing in this search term, we extend our deepest condolences. There are certain times during our lives in which we find ourselves needing to find out how to do something that we certainly don’t want to do. However, legal and financial matters often demand our attention regardless. If you are needing to find out how to change the deed on your house due to the passing of a beloved, you have come to the right place. Our objectiveis to present this guide to you in your time of need, so that you can complete this step as painlessly as possible. By the end of this guide, you should understand what steps you need to take, best practices, and anything else you should know based on the type of ownership associated with your property.
Should I Remove My Deceased Spouse from the Deed of Our House?
First things first, you are likely wondering whether removing a deceased loved one from your house deed is required. In most cases, spousal removal from your deed will not be necessary. This applies when you already hold a type of house deed that enables the automatic transfer of property upon the death of a spouse. In other cases, a deed will be changed on your behalf as a result of legal proceedings related to your partner’s Estate Plan.
With that being said, it is best practice to verify that your deceased spouse is, in fact, removed from the deed. It is best not to assume that this will happen automatically. This is because holding the deed to a house is paramount for the living owner. Without a title to the house, they cannot perform important actions such as selling the house or taking out a new mortgage. Proving homeownership gets harder and harder with each passing generation. Therefore, it is best practice to make sure that the deed is updated when necessary.
How to Remove Deceased Spouse from Deed on House
Before we begin, let us make it abundantly clear that there is no blanket process for removing a deceased spouse from the house deed. How the property will transfer and what actions are required in order for the transfer to take place largely depend on two things: the type of property ownership and your spouse’s Estate Plan. These two things will also determine whether or not the transfer can take place outside of probate.
The best way to get started is to understand what type of estate plan or legal agreements you and your spouse had in place in regards to property ownership. First, look at the deed of the property in question. The deed will explain who holds title, and whether or not the owners have the right of survivorship. We will explain what this means shortly. Second, review your spouse’s estate planning documents. (In some cases, you will be reviewing documents that you established together, such as a Joint Will and/or Joint Trust.)
If you already know what your ownership and legal arrangementsare, feel free to skip directly to the section that applies to you. If you’re not sure, don’t worry. Review each of the following sections to determine which scenario applies to you.
Here are the 4 different types of property ownership that we review for changing the deed on the house after the death of a spouse:
Property with Right of Survivorship
Property held in a Trust
Property subject to Last Will and Testament
Property for which spouse has no Last Will and Testament
Property with Right of Survivorship
If you purchased a home with your spouse during your marriage, then odds are you co-owned the property with right of survivorship. This is the ideal scenario, as it creates the smoothest possible transfer of ownership in the case of either spouse’s passing. Look at your deed, which will tell you whether or not you have the right of survivorship.
If you do have the right of survivorship, then your deceased spouse’s half of the property will pass to you automatically. In other words, you absorb their 50 percent of the property so that you become the sole owner. In this case, there is no need to change the deed on the house because it is valid as-is. You then have the legal right to bequeath the property to the beneficiary of your choosing. Your beneficiary will obtain an updated deed upon inheriting the property.
Another benefit to having a deed with right of survivorship is that the property does not pass through probate upon the death of a spouse. This is because their share of the property transferred automatically, and is thus excluded from their estate.
Property Held in a Trust
In some cases, a house may be held in a Trust that was set up by your spouse as a part of their Estate Plan. There are certain benefits associated with transferring real estate into a Trust. The main advantage is the ability to pass property on to loved ones outside of probate.
If this applies, then you’ll want to review the terms of the Trust. Hopefully, you would have already discussed any existing Estate Plan and what to expect. The Trustee is the individual who is responsible for ensuring that the property ownership is transferred per the terms in the Trust.
If you are the named beneficiary of the property, then you will have the legal right to inherit the deed to the home. This may not be necessary if you are already on the deed with the right of survivorship.
If you are not on the deed and are the rightful owner, then you should certainly change the deed. Unless you are the existing Trustee of a joint Trust that was held between you and your loved one, then you will need the assistance of the Trustee.
They will file a deed form with your local county that specifies that you are the Grantee of the property. They will submit any required documents and the filing fee, to be paid out of the Trust. Most often, a copy of the deceased spouse’s death certificate, the notarized death affidavit, and a legal description of the property are required. Once these steps are complete, your deceased spouse will have been removed and you will be the sole owner on the deed.
Property Subject to Last Will and Testament
If your spouse established a Will, and your deed does not have the right of survivorship, then the house will pass through probate as a part of their estate.
In this case, the probate court will assign an Executor who is responsible for distributing property. This is typically the Executor who was named in the Will, unless there are any legal conflicts. The court will first order the payment of any outstanding debts of the estate. Then, any remaining property will be distributed. In this case, the Executor will use an Executor’s deed form to transfer property to the appropriate beneficiary. It may very well be that you are both the Executor and the beneficiary simultaneously. The steps outlined in the previous section would be followed.
Property for which Spouse has no Last Will and Testament
There are also cases in which a loved one will pass away without having created a Will or Trust. This is called dying intestate. In the case of intestacy, the property will pass through the probate process. An exception is if the deed included the right of survivorship. By now, you should be familiar with this concept. In short, the property passes automatically to the surviving owner and the deed does not need to be updated.
The probate court will apply state intestacy laws to determine how the property should be distributed, and to whom. The court-appointed Executor will be responsible for ensuring that the property is transferred, which includes the process of procuring a new deed for the house.
Here, we want to emphasize that the probate process can take a long time, and it can also be costly. In most cases, the surviving spouse will be the rightful heir to any real property. However, there are also scenarios in which a house could go to someone other than the intended person.
Protect Your Spouse & Create Your Estate Plan Today
Changing deed on house after death of spouse. If you had this abstract in mind at the beginning of this article, we hope that many of your questions were answered and you’ve attained some clarity.
The key takeaway is that homeownership, and the transfer of ownership, depends largely on two things: the type of ownership (as determined by the deed) and the Estate Plan. Being very intentional about your house deed and Estate Plan can save your loved ones a world of worry upon your eventual passing. As you may have noticed, not having the right type of deed or Estate Plan can result in your home going through a lengthy and costly probate process. This could be avoided altogether by setting up a deed with right to survivorship. You can bolster your protections by transferring your home so that it is held by a Trust.
Now that you have this knowledge, we encourage you to establish or create your Estate Plan as soon as possible. Based on this guidance, setting up a Trust is a great option. That way, you can make extra sure that your home will pass automatically to your spouse outside of probate. If you are the surviving spouse, it is equally as important to update your Estate Plan to ensure that you can pass on your property to the next generation.
We have several Estate Planning options to choose from. Whether you want to set up or update your Will, Trust, or Joint Trust, we have a system that will support you through the process. Click here to get started.
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