Selling Real Estate and Probate

by Nancy Fuentes-Diaz 07/19/2020

Image by Gerd Altmann from Pixabay

Sometimes a couple buys a house together but does not marry. Lawyers and closing agents often title the property as tenants in common. This causes major problems if one partner passes and the other expects the property to transfer solely to them. When a property is titled as tenants in common, the decedent’s share goes to their heirs, not to their partner. When you purchase real estate, always check the deed to make sure that it is titled in the best way that benefits your relationship. While a couple who buys real estate together may not plan on separating, it does happen. However, if you feel that you would never separate because of certain circumstances, you might want to ensure that the property is titled as joint tenancy.

Probate and Real Estate Titles

If the property is titled as joint tenancy, the decedent’s share automatically goes to the other joint tenants listed on the deed. If it is titled as tenants in common, the decedent’s share goes to their heirs, not to their partner. However, you can avoid this by making sure the property is included in a will. The downside of this is that the will has to go through probate. Depending on the county the property is in and other problems that could arise with the estate, probate takes a minimum of six months to a year. It could take longer. Before you purchase property with someone you do not legally marry, make sure you have a conversation on the disposition of the property should one of you pass. Advise your attorney or closing agent to make sure the deed is titled in the manner you want.

Methods of Holding Property

You can hold property in several methods. One way is going to be better than the others, depending on your relationship and who you want to get the property postmortem. Joint Tenancy allows your share to pass to the others on the deed in the event of your death. You do not need to be married or even related to have a deed titled as joint tenancy. However, you cannot name someone else in your will to inherit the property. Additionally, creditors for one person may go after the other person on the deed – in effect, you become responsible for your partner’s debts.

With Tenancy in Common, you hold title to the property jointly, just as you do with joint tenancy. However, the other person’s creditors cannot go after you, and when one person dies, the property goes to that person’s heirs instead of the other person on the title. If two people own the property, they each own one-half interest. If one person dies and the property goes to their two kids, then the property is owned by the other person on the deed plus the decedent’s kids.

If you want to have the property titled as Tenants by Entirety, you have to be legally married. This assumes that you both are one person. If one person dies, the title is transferred to the other. In most cases, the property does not have to go through probate when one person dies.

Sole Ownership means that you and only you own the property. You can be married and have a property titled as sole ownership – in the event of death, the entire property goes to your heirs and your spouse does not get the property unless you will it to them.

You can also hold property as a corporation, a partnership, or in trust. The property is titled in the name of the business or the trust. When a trust holds property, disposition depends on the type of trust. If you are not sure how to title property to best benefit you, speak with a real estate attorney before you close on the property.

About the Author
Author

Nancy Fuentes-Diaz

Hi, I'm Nancy Fuentes-Diaz and I'd love to assist you. Whether you're in the research phase at the beginning of your real estate search or you know exactly what you're looking for, you'll benefit from having a real estate professional by your side. I'd be honored to put my real estate experience to work for you.