If your husband is not on the deed to your home, you might want to add him as a joint owner. Having both spouses on a title makes the administration of your estate easier upon your death and might help your family save money by avoiding probate fees. You can keep your property out of probate and ensure that your spouse maintains ownership of your home after your death by adding your spouse to the title using a quitclaim deed.
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Probate is the court procedure for the distribution of an individual’s estate upon death. Whether or not you die with a valid will in place, the distribution of your estate’s assets may be overseen by the probate court in your state to ensure your property is distributed according to the terms of your will or your state’s intestacy laws. If you leave your home to your spouse in a will, it will most likely need to go through the probate process. Probate can take a long time, and the legal fees and court costs can quickly add up, making probate expensive. However, only property owned by the deceased individual alone will pass through probate. If you jointly own property, it will pass to the joint owner without going through probate.
Property held by two or more individuals with a right of survivorship is referred to as joint tenancy. Right of survivorship means the deceased person's interest in the property passes immediately to the remaining owner upon the death of a joint tenant, without the submission of paperwork to the court to transfer ownership. In addition, many states recognize a tenancy by the entirety which is a joint tenancy that is only available between spouses. Holding the title to the home in a joint tenancy or tenancy by the entirety can help your spouse avoid probate upon your death.
A quitclaim deed is often used to add a spouse's name to the title of property because it does not require a search of the public land records. Unlike a warranty deed, a quitclaim deed does not warrant that the grantor holds title to the property. Instead, a quitclaim deed transfers whatever ownership the grantor has in the property to the grantee. To add a spouse to the property and create a right of survivorship in which you hold the property as joint tenants or tenants in the entirety, a new deed must be drafted.
A quitclaim deed naming your spouse as joint owner replaces the current deed. To draft a new quitclaim deed, list yourself both as grantor and grantee. In addition, you must specify in the deed that you and your spouse wish to hold the property as joint tenants with rights of survivorship. The deed must include the legal description of your property. You can find the legal description of your property by referring to your original deed. File the deed in your county recorder's office. Some states may require that an attorney draft and file the deed for you.
References & Resources
- Fortenberry Legal, The Probate Lawyer: What is a Quit Claim Deed
- Michigan Legal Aid: Do You Really Want to Avoid Probate?
- The New York Times: Efforts to Avoid Probate Can Carry Their Own Risks
- Southern Illinois University Law School: Living Trusts and Avoiding Probate
- Duhaime: Joint and Common Tenancies
- Stockbyte/Stockbyte/Getty Images