2006-11-10 / Columnists

Spotlight On Elderlaw

Q And A Focusing On A Deceased Spouse
Commentary By Nancy J. Brady, RN, Esq. And Linda Faith Marshak, Esq.

Commentary By Nancy J. Brady, RN, Esq.
And Linda Faith Marshak, Esq.

Question: My husband died this month and most of our assets are in both of our names. Does the deed to the house which is both of our names need to be changed to my name only?

Answer: No. A deed to a residence in the name of a surviving spouse and a decedent spouse need not be changed. If the surviving spouse chooses to sell that house at some future time, having your late spouse's name on the deed will pose no problem.

At the time of the sale, the title company will request a death certificate for your late husband and related affidavits. Therefore, it is always a good idea to order a few extra certificates (usually provided for by the funeral home) and keep them in a safe place for future use.

Note that on the death of a surviving spouse the situation will be different. If all your children of the parents are to inherit the house, the house will pass to them as "heirs at law" and no probate proceeding will be required. If, on the other hand, it is your intention not to leave the house to all your children equally, a probate proceeding will be required if the house has not been placed into a Living Trust. This trust or Irrevocable Trust avoids Probate. The Irrevocable Trust provides additional benefits as part of an integral Medicaid plan.

It is always important for the surviving spouse to seek legal advice on the death of a spouse. It is rarely a good idea to put a child's name on the deed with a surviving spouse even when that may be the child who will ultimately inherit the house. A few reasons for this include: your child's creditors can now attach your house for their debts; if your child predeceases you his spouse may now own a share of the house; and in divorce proceedings that share of your house your child now owns may be considered an asset under the marital laws called "equitable distribution."

Question: We have two bank accounts that are jointly held. What problems does that pose?

Answer: For the purposes of accessing the funds or closing the accounts, having joint ownership with the right of survivorship allows the surviving spouse to do anything you want with those funds.

This form of ownership tells us that on the death of one joint owner the second owner becomes the full owner of the account. The same issue around probate is easily remedied in bank accounts.

It is advisable to place beneficiaries or "in trust for" designations on the accounts so that on the death of the second spouse the beneficiaries can easily obtain access to the funds, without probate proceedings.

Question: We also have life insurance policies, IRA accounts and annuities. What do I do with those assets?

All these types of assets are considered "non-probate" assets and will pass, without reference to the Will to the beneficiaries named on the particular accounts. Again, those original death certificates will be necessary for that transaction to take place.

This article is meant for educational purposes only and is not to be construed as legal advice.

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