I have a will and it states that my home is being left to my children. Should I be concerned about probate? Yes. The reality is that your home, even if left to heirs in a will, cannot be legally sold without permission of the court, which means that your property must go through a probate administration. It is common knowledge that probate administration is costly and time consuming. Unfortunately, the process only moves as fast as the court dictates.
My partner and I own our home together but we have not executed wills. What will happen to my home after I am gone?
Most married couples own their home via “tenants by the entireties,” and ownership transfers automatically to the surviving spouse. Once the surviving spouse passes, the home is subject to probate with ownership determined by the surviving spouse’s will, or if none, by the court. If a home is owned via “joint tenants with rights of survivorship” the deceased’s share will pass to the other joint owner, who may not be their spouse. Your situation can be addressed by consulting with an estate planning attorney who is also familiar with real estate matters.
My spouse and I created a trust, but our attorney did not discuss our home ownership. Why?
Addressing a client’s assets and assuring that they are not subject to probate is part of estate planning, often referred to as funding. In my practice, offering a blueprint for funding, including home ownership, is part of the process. Unfortunately, there are attorneys that create trusts and do not provide funding assistance. I recommend that you reach out to your estate planning attorney to ask about funding, addressing all of your assets including any real property you may own.
So, how do I guarantee that my home is not subject to probate?
There are several types of deeds that assure a home transfers to a new owner without the participation of the probate court. This is certainly not a do it yourself project, and should be done by someone who not only has experience with real property but understands the estate planning process. Your goal is to prevent problems down the road.
My cousin sold his mom’s house after she died. She didn’t have a special deed, and he did not go through probate. How was he able to do this?
Your cousin may have owned the house jointly with his mom, or she may have created a life estate deed naming your cousin as the remainderman.
My spouse and I each have children from previous marriages. I’d like my home to eventually go to all our children. After I am gone, can my spouse change the deed so it only goes to her children?
Yes, she can. With so many blended families, this is a common concern. But with creative planning, you can be assured that all children ultimately receive the house as an inheritance, regardless of which spouse passes first.
