If my bother-in-law has a distributive deed for property owned by his late mother, what does he need to do to so that the property passes to his wife when he dies?

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If my bother-in-law has a distributive deed for property owned by his late mother, what does he need to do to so that the property passes to his wife when he dies?

His mother did not leave a Will, so it went to probate. He now owns the property by way of the distributive deed but it is in his name only. He lives in the property with his wife (my sister), it is “their” home. They have a joint Will that leaves everything to each other on the death of either but the distributive deed does not have a right of survivorship clause.

Asked on September 10, 2012 under Estate Planning, Florida

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 9 years ago | Contributor

It sounds like your brother-in-law's will ensures that this property will pass to your sister.  However, a formal probate will be required to change title from your brother-in-law to your sister.  Your brother-in-law can easily have a new deed prepared that transfers title from his individual name to he and his wife jointly. 

In most states, a deed held in the names of a husband and wife is automatically a "tenancy by the entireties," especially if the property is the married couple's homestead.  If your state does not follow this general rule, the deed can be written for a "joint tenancy with right of survivorship."  Both of these deeds secure joint ownership of the property and ensure that the property passes to the survivor when one owner dies.  With such a deed, the property passes outside the estate and no probate is required.

If your brother-in-law wishes to ensure the property will pass to your sister without the need to open an estate, he should have a new deed prepared.  A lawyer in your area can do this, or a title company may be willing to prepare and file the deed.  Title insurance agents prepare deeds like this every day.  They know the requirements and they have the means to record the deed very easily.  A title agent will probably charge less than a lawyer.

I hope this helps.


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