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Estate Planning: Home ownership after the death of a spouse
Estate planning

Estate Planning: Home ownership after the death of a spouse

Q: My father passed away recently. How do we remove his name from the title to the home? Can we record a death certificate or have mom sign a new deed?

A: The first thing to determine is how your parents held title to the home. More than likely you are going to find out that they owned the home as husband and wife (legally known as Tenants by the Entirety).

Tenants by the entirety is a form of ownership available exclusively to married individuals and it does several important things. First, it essentially creates an ownership interest in which the spouses own the property jointly as a couple and not individually. The second thing that it does is it creates the rights of survivorship so that the survivor of them owns the property as a matter of law at the death of the first spouse.

Joint tenancy with rights of survivorship is similar to tenants by the entirety in that it conveys rights of survivorship. However, joint tenancy differs in at least one important point: the joint owners are not treated as a single unit.

If you own entireties property with your spouse, you can’t transfer your interest without your spouse’s permission, because you own it as a unit, not individually. This is not the case for joint tenants. If a joint tenant wants to transfer his or her interest in the property, they can do so at any time with or without the permission of the other joint tenant.

Another way that entireties and joint tenancy differs involves protection from creditors. If an entireties spouse has a judgment entered against him or her, the judgement lien doesn’t attach to the entireties property because the spouses own it as a couple. Joint tenants don’t have this protection, so if one of them gets sued and a judgment is awarded, it can attach to the join that joint tenants’ interest. The judgment creditor can foreclose their judgment lien and force the sale of the property.

As for your question, assuming that your parents owned the home as tenants by the entireties or as joint tenants with rights of survivorship, the surviving spouse owns it as a matter of law at the moment of death. To notify the recorder’s office of the death, we usually prepare a surviving spouse affidavit or surviving joint tenant affidavit. That puts the recorder and the rest of the world on notice that one of the owners has died and that the survivor of them now owns the home alone.

There was a time when people recorded a death certificate, but I’ve never been a fan of that. The affidavit makes a number of recitals in it that are important and the recorded document can prove the change of title.

Finally, there won’t be a deed as the surviving spouse owns the property at the moment of death. The affidavit demonstrates proof of the transfer of title in lieu of a deed.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to 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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