Real Estate & the Death of the Family Sole Owner

by Fraser Sherman
Leaving estate planning to the last minute isn't good for your kids or your spouse.

When family members hold title to a house or other property as joint tenants, they have a right of survivorship. If one owner dies, the other inherits. By contrast, if only one family member owns the property, it's up to her how to dispose of the property after her death. Usually what's written in her will has the last word.

Wills and Intestacy

If the owner leaves a will, the probate court and the executor will usually honor his last wishes. Whether he leaves a piece of property to his youngest child, all his children together, his best friend, or to charity, it's his decision to make. The will has to meet his state's requirements. For example, it must be witnessed if that's the law in his jurisdiction. When there's no valid will, the probate court divides the estate up according to state law -- a percentage for the spouse, the children and so on.

Spousal Rights

One of the exceptions to the owner's wishes is that in most states, the deceased can't cut his spouse out of the will. If the deceased lived in a community property state and bought the house during the marriage, one-half belongs to his spouse. In other states, spouses are entitled to at least one-third or one-half of the decedent's estate. That doesn't guarantee a share of the house, but the court will consider spousal claims. If the surviving spouse is fine with the will, however, there's no problem.

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Special Cases

If the deceased transfers the property title to a trust before his death, the instructions in the trust trump whatever was in the will. A beneficiary named in the trust inherits the property, and it's much harder to challenge a trust than a will. Some states have laws that carve out other exceptions. In Florida, for example, the head of the family must leave his home to either his spouse or a minor child, if either is alive when he dies.

Estate Planning

There's no guarantee what the decedent wrote in his will was the right decision. If the will gives joint ownership to the deceased's children, for instance, the kids may not agree whether to sell, rent it out, or move in. That's what makes estate planning challenging: it's not just about what the owner wants but what his beneficiaries want and need. Talking about the will before you die is a good step toward making things work out right.

About the Author

A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.

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