Q: Our home has a special warranty deed on it. If I die first, will my wife have any trouble getting the home in her name without going to probate? Or should we move title of the home into a joint tenancy with rights of survivorship?
A: We're a little confused by your question. There are various types of deeds uses to convey real estate title from one entity or individual to another. Some deeds are labeled "warranty deed," "special warranty deed," "limited warranty deed," "quitclaim deed," "grantor's deed," "bargain and sale deed," "trustee's deed," "executor's deed," and so on (a more and more common one these days is a "sheriff's deed").
Each of these deeds may carry with it certain representations and warranties a seller makes to the buyer. In any given state, one type of deed may be more common than another, but the essence of the document is to transfer the interest of the current owner to the new owner.
In states that allow quitclaim deeds to be used for the conveyance of title from a seller to a buyer, the buyer ends up getting title to the property at the end of the day.
But a second element in all of these deeds is the manner in which the buyer decides to take title to a particular piece of property. If a buyer is an individual, he or she can take title in his or her name. If the buyer wants to take title in the name of his or her living trust, the buyer would make sure that the title to the home on the deed names the living trust.
When a couple buys a piece of land, those owners can choose to take title in various ways. They can elect to take title where each person gets a 50 percent interest in the property or whatever percent they choose as long as the transfer conveys 100 percent of the title from the seller to the buyer. When property owners take title in this manner, it is usually referred to as taking title as "tenants in common."
Buyers can also choose to take title as joint tenants with the right of survivorship. With the survivorship language, the surviving owner automatically gets the deceased owner's interest in the property without the need of further action. The deed will usually have language that says that the buyers are taking title "as joint tenants with rights of survivorship."
Married couples, and now in some states, civil union couples, can take title and benefit from the survivorship benefits and have an added protection against creditors when that creditor claims a debt owed by only one of the owners of the home. In some states, the language used to take title in this manner is "tenancy by the entirety."
In each of these cases, the deed specifically identifies how the new owner is taking title to the property.
In your question, you made reference to the name of the deed but did not mention how you and your wife took title to the home. If you took title with the survivorship interest, you should be set. If you took title at tenants in common, then you should change the title to home to allow each of you to automatically become the full owner of the property upon the death of either of you.
If you are unsure of how you took title and what you might need to do, you'd probably find it helpful to speak with an estate planner. At that time you should discuss whether you have valid wills, if you should create a living trust and what is the best method for both of you to hold title to the home.
(Ilyce R. Glink's latest book is "Buy, Close, Move In!" If you have questions, you can call her radio show toll-free (800-972-8255) any Sunday, from 11a-1p EST. Contact Ilyce through her Web site, www.thinkglink.com.)
(c) 2011 ILYCE R. GLINK and Samuel J. Tamkin. distriBUTED BY TRIBUNE MEDIA SERVICES, INC.