I think all couples that are purchasing real estate should know this important fact:
I listed a home recently where the lady’s husband had passed away and she wanted to get the home sold because she could not afford to continue making the payments. When we put together the listing documents to put the home on the market, I noticed that her name was on the mortgage but not on the county tax/deed records, so I asked her to contact the register of deeds and closing attorney that closed escrow on the home when they bought it, to make sure that it was deeded as Joint tenants with right of survivorship. She was under the impression that she was on the deed and thought that she automatically had the right to sell the home after her husband passed, but this is not the case.
As it turns out, her name is not on the deed, even if it was, it would have had to be deeded not as “tenants in common”, but as “Joint tenants with right of survivorship” for the home to automatically go to her when her husband passed away. To fix this, she will have to go through probate which could take five to eight months, and sometimes up to a year and half depending on the size of the estate. This has resulted in us having to take the home off the market until the issue is resolved, while she tries to figure out how to continue making the payments.
I have closed several transactions where the buyers did not request their new home to be put in both names as joint tenants with right of survivorship so that God forbid one passes away, the other one will not have to go through probate to get full ownership of the property. Interestingly, most of the attorneys out there does not give the buyer the option either.
So, I want to encourage all couples who are on the market for real estate to consider having the closing attorney deed their property as “Joint Tenants with right of survivorship” to save them the heartache of going through probate if one of them were to pass away. I encourage all real estate agents to make their clients aware of this too.
