What would happen if I dies and our residence/mortgage is solely in my name?

I was told that the state or county would take 1/2 of the property even though my will names my wife as the beneficiary. Is this true? I was married 2 years ago.

Asked on August 7, 2015 under Estate Planning, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, that is not true. If your will names your wife as the beneficiary to inherit your property, she will become the owner IF she accepts the property--no one else gets half of it. There are two caveats about real estate however:

1) If there is a mortgage solely in your name, upon your death, the mortgage will come do. It will have to be paid off, either by the estate (e.g. with any money or accounts you are leaving to you) or by your wife, or she will have to see if she can refinance it in her name; and

2) If there are unpaid or delinquent property taxes, she'd have to pay them, too.

If the home is underwater, or there is a larger mortgage or more taxes than she can or wants to pay, she may choose to disclaim the home and not accept it, letting the bank and/or county take it for mortgage or taxes.

Also, there may be tax consequences to her, if your estate is large enough to exceed whatever is the threshold for starting to pay estate taxes at the time you die (this threshhold periodically changes).

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, that is not true. If your will names your wife as the beneficiary to inherit your property, she will become the owner IF she accepts the property--no one else gets half of it. There are two caveats about real estate however:

1) If there is a mortgage solely in your name, upon your death, the mortgage will come do. It will have to be paid off, either by the estate (e.g. with any money or accounts you are leaving to you) or by your wife, or she will have to see if she can refinance it in her name; and

2) If there are unpaid or delinquent property taxes, she'd have to pay them, too.

If the home is underwater, or there is a larger mortgage or more taxes than she can or wants to pay, she may choose to disclaim the home and not accept it, letting the bank and/or county take it for mortgage or taxes.

Also, there may be tax consequences to her, if your estate is large enough to exceed whatever is the threshold for starting to pay estate taxes at the time you die (this threshhold periodically changes).


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