Question: My husband passed away after 41 years of marriage. His sons have refused to sign the form to give me the power to put our home in my name.
They live in another state and are not interested in traveling to my area or going to court to get this done. This is my home, and my name is on the mortgage. I need to put the house in my name on the deed to get homeowners insurance. Can I do it through the mortgage company?
Loraine’s Answer: Your husband’s children don’t have to travel to your area or go to court in order to sign anything for the probate court; all they have to do is be mailed or even emailed a copy of the relevant document, get it signed and notarized, and send it back to you for further handling. If their objections to signing are based solely on their not wanting to have to travel to another state or go into a courtroom, that objection isn’t based on facts. I suspect, however, that their objections may be based on more than just that. And no, the mortgage company cannot change title to the property for you. You may have to go to court to do that.
As for ownership of the house, if you and your husband owned it jointly, as joint tenants with rights of survivorship, then it’s already yours, and you should not need to do anything other than produce a death certificate for him to prove that to the insurance company or anyone else. If your name is on the mortgage, you may already own an interest in the house.
You need to check the actual deed for the house (NOT the security deed). This would normally be a “Limited Warranty” or “Warranty” deed, or sometimes a “Quit Claim Deed” or even a deed from an estate (an Executor’s or Administrator’s Deed, or sometimes an “Assent to Devise”). On that deed, it should say whether your name is on the deed and how you and your husband owned the property. It must say that you own it “as joint tenants,” “with rights of survivorship,” or something very similar in order for the property to have transferred automatically to you at your husband’s death.. If you do own it with rights of survivorship and want to clear his name off the public record, file an Affidavit of Surviving Joint Tenant in the deed records (the Superior Court of the county), which includes a death certificate for your husband (with his Social Security number redacted). The Affidavit will make clear to others that the house is yours. However, if your husband was the sole owner of the house, or if you and he owned it jointly but the deed does not contain the “magic words” of “as joint tenants,” “as joint tenants with rights of survivorship,” or something similar that shows a right of survivorship is intended, then you will need to file something with the probate court in order to take sole ownership of the home.
If your husband had a Will that leaves the house to you, then you can probate the Will. You don’t have to have his children’s consent to a probate; it just makes things quicker and easier if you do. If they don’t consent, you can file the probate petition with the probate court, and the court will serve them with notice of the petition. They will then need to file any objections to the petition within a certain period of time, or it will be granted without their consent. If he did not have a Will, you can file for Letters of Administration. Again, you don’t have to have his children’s consent, if they aren’t willing to give it, but if they ARE willing to consent you can send them the paperwork and they can sign it, have it notarized, and return it to you for filing; they do NOT have to come to town or go to court themselves. If he had no Will and his children ARE willing to cooperate, you may also be able to do a Petition for No Administration Necessary, and they can agree to give you your husband’s interest in the house.
Finally, without regard to whether your husband had a Will or you get any consents from your husband’s children, if he died less than two years ago, you can file a Petition for a Year’s Support. In that Petition for Year’s Support, you can request that the court award you your husband’s interest in the house (along with other assets from the estate, if there are any). The children will have to be served with notice of this Petition as well, if they don’t consent to it by signing it, but again they do not have to consent. If they want to challenge a year’s support petition, they can, but it’s not easy to do.
Get a consultation with a good probate attorney, preferably one who has experience with contested probate situations, and get the attorney to help you. Do it soon; you only have two years after death for the year’s support petition, and that may be your best option.
Key Estate Planning Takeaway: In blended family situations, the surviving spouse does not need the consent of the deceased person’s children to move forward with estate administration, although those children are entitled to receive notice of any petitions that are filed with the probate court regarding the estate and can try to contest the petition if they haven’t consented to it.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
