ESTATE PLANNING: Transferring jointly owned real estate

2012-12-15T12:54:00Z ESTATE PLANNING: Transferring jointly owned real estateChristopher Yugo Times Business Columnist
December 15, 2012 12:54 pm  • 

Q: My mother passed away earlier this year. How do we take her name off of Dad’s home? Does Dad need to sign a new deed?

A: First you need to determine how your parents owned the home. I suspect you are going to find that the title to the home lists your parents as tenants by the entireties, husband and wife or, although less likely, as joint tenants. It’s possible that your parents owned the home as tenants in common, but that’s pretty unlikely.

If you can’t find the deed to your parent’s home, you may need to visit the recorder’s office to obtain a copy of the deed. You can try checking the county assessor’s website to determine ownership. However, I have found the website isn’t always up to date, and sometimes it is even wrong. I suggest you visit the recorder’s office to obtain a copy of the deed. You’re going to need information from the deed to clear up title by removing your mother’s name anyway.

Assuming that your parents owned the home as husband and wife, you will need to record a Surviving Spouse Affidavit. A Surviving Spouse Affidavit will contain information necessary to remove your mother’s name and clear title for your father.

I have seen occasions when a surviving spouse actually files a copy of the death certificate. That can work, but it may become an issue down the road when a title company looks at it. Personally, I recommend filing the affidavit as to avoid those questions. Once a properly prepared affidavit has been recorded, your mother’s name should be removed and your father will be the sole owner.

In the unlikely event you find that your mother and father owned the home as tenants in common or if your mother owned the home in her name alone, you will need to treat the home as a probate asset and transfer it accordingly. That means you will need to open a probate estate for your mother or, if it qualifies, use the informal probate procedure and transfer the home by affidavit.

Although I have discussed transferring jointly owned property to a surviving spouse, the procedure is essentially the same for non-married individuals owning real estate jointly. The affidavit will need to be tailored to fit the circumstances and rather than recording a Surviving Spouse Affidavit you would record a Surviving Joint Tenant Affidavit. Other than that, it’s pretty much the same.

Finally, preparation of the affidavit is best left to an attorney. Remember, you are messing with the title to real estate. Spend a few bucks and get it done right.

Christopher W. Yugo is an attorney in Crown Point. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Yugo’s 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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