If a married couple buys real estate, should title be held in both of their names?

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If a married couple buys real estate, should title be held in both of their names?

MY WIFE AND I OWN A HOME AND TITLE IS IN BOTH OF OUR NAMES. WE ARE PLANNING TO BUY A SHORT SALE HOME. ARE THERE ANY LEGAL COMPLICATIONS IF THE TITLE IN 1 PERSON’S NAME? IF IT IS IN 1 PERSON’S NAME THEN IF THAT PERSON DIES, DOES IT TRANSFER TO THE LIVING SPOUSE(1 OF THE SPOUSES DOES NOT WORK)? IF THE SECOND NAME NEEDS TO BE ADDED TO TITLE LATER ON, IS IT DIFFICULT TO DO? WHAT IS YOUR ADVICE RE: TITLE BEING IN 1 NAME VERSUS BOTH NAMES?

Asked on February 21, 2011 under Real Estate Law, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you want to avoid confusion and possibly having to probate the estate of your spouse should either of you pass away, title the property in both of your names.  Although there is an assumption that assets purchased during a marriage are marital property and that property is owned by both of you regardless of how it is titled (this usually comes up in a divorce), property only passes upon death "by operation of law" (and thereby avoiding probate) when it is properly titled.  So have the deed read "So and So and So and So as Tenants in the Entirety."  Only a Husband and Wife can hold as Tenants in the Entirety in New York.  And go and see an estate planner with all these properties.  You may want to consider a trust.  Good luck.


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