Q: I have remarried and would like to add my husband's name to the home that I own. I was told that I need to execute a quitclaim deed. However one of your recent articles discuss a transfer on death deed. If I use a quitclaim deed and use joint tenants with rights of survivorship, will it be the same thing as a transfer on death deed?

A: No, transferring title to yourself and your husband as joint tenants with rights of survivorship is not the same thing as using a Transfer on Death Deed (TOD Deed). If something were to happen to you, it's possible that the result would be the same (i.e. your husband owns the property without the need for probate) but they are not the same thing.

When you transfer title to real estate using a quitclaim deed, you are creating a present interest in the property. In other words, your husband will become a part owner in the real estate the minute you record the deed. On the other hand, a TOD Deed does not create a present ownership interest in the property. All a TOD Deed does is name a beneficiary on the real estate. If you name your husband as beneficiary under the terms of a TOD Deed, he'll receive title, but only if you own the property on the day you die.

The difference between a quitclaim deed and a Transfer on Death Deed isn't a subtle one. That present ownership interest is important. All the TOD Deed does is create an expectancy, not an ownership interest. The simple answer to which one you want to use is; I don't know. It depends on what you are trying to accomplish.  

Generally speaking I don't like creating a joint tenancy unless there is a good reason to do so. Joint tenancy can lead to issues such as a judgment creditor for one joint tenant attaching his or her ownership interest in the property or one of the owners seeking to force a sale of the property. It's a present interest so all of the rights, obligations and risks of land ownership are created.

Although I'm not a big fan of joint ownership, I generally make an exception for spouses. In fact, I usually presume that property should be owned jointly between spouses and then look to see if there is a reason why it shouldn't be.  

There is a special type of joint tenancy available only to married couples known as tenants by the entireties which offers them certain benefits. For example, entireties offers spouses some protection from creditors and limits one spouses ability to transfer ownership of their interests. Tenants by the entireties is usually the rule for married folks.

My question to you is what do you want to do? Do you want to create a present ownership in the property or do you simply want to make sure he gets it if something happens to you. If your only goal is to make sure he receives the property after your death, a TOD Deed would likely work. However, if you want him to have present ownership interest and also own the property in the event of your death, the quitclaim deed may be your solution. Just make sure that you transfer title to both of you as tenants by the entireties or as husband and wife to take advantage of the protections only available to spouses.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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