It still amazes me how many people think that they can prepare their own deeds for their real estate without the help of an attorney. Usually the driving factor is to add children's names to the deed so that when the parent dies the property will not have to go through probate. Aside from all of the problems adding your children's names to the deed for your home can cause (refer to Avoiding Probate By Adding Your Children to Your Deed - Good or Bad Idea? for more about that), the real problem lies in how the deed is worded because in many states the default ownership for real estate when more than one name is on the deed is as "tenants in common" (unless, in some states, there are two owners on the deed and they are legally married). This means that if three names are on the deed, then legally each person listed on the deed is considered to be a one-third (1/3) owner of the property. So, when one owner dies, his or her one-third (1/3) interest in the property will go to his or her own heirs through probate (either as provided in the deceased owner's last will and testament or the applicable laws of intestacy), and not to the other owners listed on the deed (unless they are named in the deceased owner's will or are among the deceased owner's intestate heirs).
So how can ownership as "tenants in common" be avoided? By adding the "magic legal words" to the deed. This is governed by state law, but will usually include words like "joint tenants with right of survivorship" or something along those lines.
The moral to the story: if you want your real estate to pass to the other people listed on your deed outside of probate, then check your deed to see if it uses the "magic legal words" such as those listed above. If not, then check with a real estate attorney in the state where the property is located to find out what will happen to your property after you die.
- How Property is Titled Dictates Who Inherits It After You Die
- Overview of Types of Property Ownership
- Understanding Individual Ownership of Property
- Understanding Joint Ownership of Property
- Understanding Title by Contract
- Who Inherits Property Owned as Tenants in Common?
- What Happens Without a Will?
- 4 Ways to Avoid Probate