Attorney Thomas B. Burton answers the following question: "Unmarried Both on Deed, What Happens if He Dies?"
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Hello, I'm Attorney Thomas Burton and today's question is the following:
"Unmarried both on deed, what happens if he dies? My partner and I own a house together and have one minor child together. He has no other children and does not have a will. If he were to die, what would happen with the house? Would I be able to take over the mortgage? Would I be responsible to pay off his car and credit cards before I could do this?"
Thank you for this question, I see it come a lot with unmarried people, who jointly own real estate. If you're unmarried and you own the house together, it will depend on how the title to the home is held. What becomes very important is examining the deed from when you bought the property to see how the title is held.
If you are both on the title to the property then it depends on if you hold the title as joint tenants with rights of survivorship, sometimes, abbreviated as "JTWROS", or as tenants in common. If you hold it as joint tenants with rights of survivorship, this means if one joint tenant dies, the other joint tenant inherits the entire property by operation of law by deed without probate. if you hold it as tenants in common, then the share that your deceased partner held would pass according to his probate estate upon death.
You told me he has no will, if he also has no trust then this share in the house, if it's held as tenants in common, would pass according to the intestate statutes in the state of Wisconsin. Your share, whatever it is, would still be owned by you at that point. The mortgage will stay with the property since the lender has a secured interest in the property.
The second piece of this is whether the mortgage is in both of your names or just his name only. If it is already in your name and you inherited the entire house as let's say, it's joint tenants with right to survivorship, then you could likely just keep paying the mortgage and you would own the entire house. If it's only in his name and you inherit the house, you would need to refinance the mortgage to get it into your name after his death.
I suggest, you and your partner review the deed carefully and consider putting an estate plan together that dictates what happens to your assets, to each of your assets if one or you are gone.
So if you have it as joint tenants with rights of survivorship, you would be, in my opinion, the most covered in this situation without being married but if you do get married, you can hold it as husband and wife as survivorship marital property and that's also a very common way to avoid probate upon the death of one spouse. But if you're not married, you can't use survivorship marital property, so you would have to look at joint tenants with rights of survivorship.
So again, examining the deed, there are ways he could avoid probate on the house if he wanted to upon his death by using the title and if he wanted to pass his interest in the house to the minor child, then I would look at using a trust to hold the property for the minor because a minor, under age 18, cannot inherit property. You really want to have a trust set up to hold the property for them until they reach the age of majority in Wisconsin, where the minimum is age 18.
As far as the debts, the debts of the decedent or your partner would become the death of his estate. So any debts he owes at death, the ultimate beneficiary, the estate would need to pay those debts before the assets could get to the beneficiary. If there's a probate process, there would be a creditor claim filing period - three months, three to four months after opening the probate, the creditors could present their claims and they would need to get paid before any assets could get distributed.
If there was no probate, they would still have claims against him after he dies but the determination of paying them would be less laid out like that.
So for sure, the mortgage will need to get paid because they have a secured interest in the property. The other debts, depending on if they're secured debts or unsecured debts like the credit card and the car but generally, a car, they're going to have a lien against the car as well.
Again, the big thing appears to be the property, you didn't mention how much equity is in the property, that's the other question here but I would really look at the deed because for people looking for the most frugal way to pass real estate using the deed and having it correctly titled, is often your best way to go, especially if you have no other estate planning documents in place.
So great question, thank you for asking, thank you for tuning in and if this video has been helpful to you, please consider giving it a LIKE, so that others can see, and benefit from this information as well.
Thanks for watching and we'll see you next time.
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