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Wife Wants To Be On Home's Title

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 678

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader lives in a home that is owned by her husband and his father as joint tenants. She is worried that if her husband dies, she will have no rights to the home. Ilyce and Sam explain the differences between tenants-in-common ownership and joint tenant ownership. They give the reader some helpful real estate advice to ensure she has a home in the future.

Q: When I married my husband about ten years ago, he owned a home with his father.
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They are both on the mortgage and the deed. The deed is titled joint tenants and not as tenants in common.

My husband's home will be paid off in two years. I tell my husband that he needs to add me to the deed because if something happens to him, then his home will pass to his father alone.

Is that correct? My husband seems to think that his half would go to me. I am concerned because we have two young children and I don't want to be put out on the street someday. We don't even have wills.

I think my husband has reservations because his mother left his father and his ex-wife left him. Plus, my father-in-law owns the land that the house sits on. Any advice?

A: You are certainly right. When two people own a property as joint tenants with rights of survivorship, the surviving owner gets title to the entire property automatically. Even if there is a will, the surviving owner gets the house.

If your husband’s intent is to have his half of the home go to you, he should at least have the title of the home changed to tenants-in-common.

As tenants-in-common, your husband and his father could own fifty percent of the home. Upon your husband’s death, his one-half interest in the house would pass to his heirs as designated under the will. If there is no will, then the property is divided in half between the surviving spouse and his kids. If the house is the only asset, then you would receive a quarter of the property and your children would divide the other quarter between them.

Because the home is also owned by your father-in law, your situation is somewhat complicated. Let’s say your father-in-law passes first, then the entire house might end up in your husband’s hands.

If your husband has reservations about having you own the home and you understand his concerns and are willing to work with him to get over his issues, you both consult with an estate attorney. The estate attorney might have a solution that can reduce (if not eliminate) your concerns. The attorney might suggest that the home be transferred to a trust that would be for the benefit of your kids.

Upon your husband’s death, the trust would ensure that the home would benefit your kids, and they would be able to remain in the property. You, as their mother, could remain there with them. When the home is sold someday, the proceeds would then go to your kids.

While this solution would not directly benefit you, it would take care of two issues: It ensures you have a place to live and raise your children in the event of your husband’s death and it ensures that your children get at least some of the proceeds when the home is sold.

While the home is owned by your father-in-law and your husband, you need to have some agreement to make sure that you and your kids can remain in the home even if your husband were the one to die. Your husband would have to have some written agreement with his father that would permit him and his family to continue to live in the home for as long as you and your kids want to live there.

Obviously, there are many considerations in your circumstances. This is not only about your father-in-law’s relationship with your husband, but it involves your relationship with your husband, your relationship with other in-laws and other people who weigh in on the decision making in the family.

The problem with not planning ahead is that whatever family disputes exist today will only grow dramatically (and likely bring out the worst in people) when a life-shaking event happens later.

The bottom line is you need to talk to an estate planner to figure out how to make sure you and your kids are protected now and in the future. And if you can’t do that, at least you’ll fully understand the risk you and your husband are taking if nothing is done with the title to the home.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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