Elder Law - Len and Rosie


Have both names on home title

Dear Len & Rosie,

My husband and I would like to add my name to the title of our home, which we own free and clear. Presently the home is only in his name. What is the process to add my name?

Nike

 

Dear Nike,

It’s good that you are dealing with this now. If your husband were to die before you get this taken care of, then the property would be subject to probate. If the home was purchased during the marriage and was paid for with community property (your wage income), then you would inherit the entire home and you could avoid probate with a Spousal Property Petition, which is much cheaper and faster than probate.

But your husband probably first purchased the home before he married you, or he may have inherited it. If that’s the case, then all or a portion of the home is presently your husband’s sole and separate property.

If he were to die without a will, then you would inherit only one-half of his separate property interest (if he has no children or only one child) or one-third (if he has more than one child). We point this out so that you and our readers may understand that if you don’t deal with this now, there could be a big mess if your husband dies: you could be pitted in a legal dispute with your own children or stepchildren, or even your husband’s more distant family members.

There are two ways of dealing with this. The cheap and easy way is to hire a lawyer or title insurance company to prepare and record a quitclaim deed conveying the property to the two of you as either “Joint Tenants” or as “husband and wife as Community Property With Right of Survivorship.”

Both forms of title will avoid probate on the death of the first of you to die, but the latter is a better way to hold title, because it ensures that the property will be treated as community property on the first death. If the home is community property, then the entire home gets a step-up in cost basis on the first death, instead of only the half owned by the dead spouse.

The best way of dealing with this property is for you and your husband to see a trusts and estates attorney and create a revocable trust that will avoid probate on the second death as well as the first. While you’re at it, make sure that you have a complete estate plan including Durable General Powers of Attorney and Advance Health Care Directives so that you will each be able to make important financial and medical decisions for one another in the event either of you are ever incapacitated.

Len & Rosie

 Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707.996.4505 or Lentillem.com.

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