MY SPOUSE IS NOT LISTED ON THE HOME DEED
In the 30 years that I have been practicing estate planning law, one of the questions I often get asked is, “How Do I Title My Home?” Our home is usually our largest single asset. It is also the asset we are most attached to - - hence why we call it “Home.”
But in this day and age, it regularly happens that different people reside in the Home at different times. Thus, the situation that occurs is that when married people own a house, but one spouse acquired the home before the marriage, the new spouse is not on the deed.
What will happen with the property when the owner-spouse dies? The answer to this question assumes that there is no estate plan.
Florida Law kicks in at the time of the death. The parties themselves do not get to decide what happens to the home. The laws have different scenarios, depending on if the deceased had children or not. If there are no children, the spouse gets the home, free and clear. It gets messy when the deceased has children; the spouse gets a ‘life estate’; this is the right to use the home during the spouse’s life; but at his/her death, the children get possession.
Further, the home (along with all other assets owned by the deceased) go through the probate process in order for the surviving spouse/children to become the owner. Probate is a court process that happens after a person dies. The personal representative, with the supervision of the court, takes inventory of assets, values the estate, pays the debts, and distributes what remains to the heirs. If that sounds complicated, it's because it is. The probate process can cost a lot of money and take a lot of time. A further problem is that probate is all public record; anyone can go to the courthouse and see who your heirs are, who your creditors are, how much debt you have, the general nature of your assets and many personal details that you would not want neighbors or strangers to learn. The additional practical problem is that the spouse may not get to read this blog. So the surviving spouse thinks everything is ok, continues to live in the home and continues to pay the utilities and mortgage for several years; he/she does not find out that the home needs to be probated until he/she tries to sell it! Then they come to me to do the closing and learn the ugly truth that the home can not be sold until it goes through probate! Meanwhile, the Buyer wants to move in asap and since the sale is held up for several months, the Buyer is lost!
How Do I Fix This!?
Creation of a new deed is one option, but the bank will get input on this option. A trust is a great option. There are pros and cons to the various options.
There is no one-size-fits-all solution to having the deed titled in one name, when there are two spouses living there.
It is best to meet with Rignanese & Associates so that we can guide you in how to handle this most important asset in your estate plan. Let us help you save time, trouble and money by doing a proper estate plan.
Please reach out to us at 141 5th Street NW, Suite 300, Winter Haven, Florida 33881 at 863.294.1114.
Established in 1991, Rignanese & Associates is available to work with clients on their legal needs.