Residential Real Estate
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What Happens to My House if I Die?
You have been happily married for a long time. You and your spouse have a beautiful home with no mortgage that you want to make sure your spouse can continue to live in long after you are gone. Do you have to include the house in your will? The answer to this question depends on what type of ownership you and your spouse have in the house.
When purchasing a home, many married couples obtain ownership as a tenancy in the entirety. This means that both husband and wife own the entire property together. If one dies, the house automatically belongs entirely to the surviving spouse without going through probate. This type of ownership also protects the surviving spouse's interest in the property from the people who may have been owed money by the deceased. Neither husband nor wife can sell their interest in the property alone unless they are divorced.
For couples who are not married, a similar type of home ownership is called a joint tenancy. Both parties have an equal undivided share of the property and a right of survivorship. Once again, if one partner dies, the other partner automatically gets the entire house without going through probate proceedings. Both parties must agree to sell the property.
The third type of home ownership is called a tenancy in common. In this arrangement, both parties own part of the property, and the ownership need not be equal. The arrangement can be 50/50 or any other percentage. This also differs from a joint tenancy or tenancy in the entirety in that either party can sell their share of the property at any time. Furthermore, there is no right of survivorship. If one party dies, his or her share of the house does not go to the other party. It would go to the deceased party's heirs as specified in the will or, if the person has none, it would be transferred according to state intestacy laws by the probate court. This is the only type of home ownership that would involve probate.
If you have questions regarding what type of home ownership you have or whether your spouse or partner will obtain the entire property upon your death, see a competent trusts and estates attorney for advice.