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 titleTitle refers to the ownershipOwnership is the absolute right to use, enjoy, and dispose of property. You own it! of a particular piece of property. of the home into a joint tenancyJoint Tenancy is an equal, undivided ownership in a property taken by two or more owners. Under joint tenancy there are rights of survivorship, which means that if one of the owners dies, the surviving owner rather than the heirs of the estate inherits the other's total interestInterest is money charged for the use of borrowed funds. Usually expressed as an interest rate, it is the percentage of the total loan charged annually for the use of the funds. in the property. with rights of survivorship?
A: We’re a little confused by your question. There are various types of deeds uses to convey real estateReal Estate is land and anything permanently attached to it, such as buildings and improvements. title from one entity or individual to another. Some deeds are labeled “Warranty Deed,” “Special Warranty Deed,” “Limited Warranty Deed,” “Quit Claim DeedA Quit Claim Deed is a deed that operates to release any interest in a property that a person may have, without a representation that he or she actually has a right in that property. For example, Sally may use a quit claim deed to grant Bill her interest in the White House, in Washington, DC, although she may not actually own, or have any rights to, that particular house.,” “Grantor’s Deed,” “Bargain and Sale Deed,” “Trustee’s Deed,” “Executor’s Deed,” and a more common one these days is a “Sheriff’s Deed” and so on.
Each of these deeds may carry with them certain representations and warranties a seller makes to the buyer. In some states, one type of deed may be more common than another, but the essence of the document is to transfer the interest the current owner has to the new owner.
In states that allow quit claim 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 commonTenants in Common is a type of ownership in which two or more parties have an undivided interest in the property. The owners may or may not have equal shares of ownership, and there are no rights of survivorship. However, each owner retains the right to sell his or her share in the property as he or she sees fit..”
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 in addition 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 entiretyTenancy by the Entirety is a type of ownership whereby both the husband and wife each own the complete property. Each spouse has an ownership interest in the property as their marital residence and, as a result, creditors of one spouse cannot force the sale of the home to pay back his or her debts without the other spouse's consent. There are rights of survivorship whereby upon the death of one spouse, the other spouse would immediately inherit the entire property.” for a husband and a wife and
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.