When your spouse passes away, don't forget to take his or her name off the title to your property

If you're a widow or widower, did you take your deceased spouse's name off  your property? If you're like most people, you didn't. Sometimes failing to take that step comes back to haunt your kids who try to deal with your estate later on. Recently a reader asked me about a scenario like that. Read on to see his question and my comments.

"I am the executor for my mother's estate and the only other beneficiary is my sister. Our father passed away many years ago. I ran into a snag. There are 5 parcels of land that my parents purchased together. Three were joint tenancies and I was able to go through probate and change the names on the deeds to my name. But two are tenants in common so I can't get my father's name off the land. They tell me that I have to open my father's estate and pay probate tax on his portion in order to remove his name. Does this make any sense? Basically I will be paying probate tax twice, once for my mother's estate and once for my father's."

Yes, this does make sense to me.

When people hold property as tenants in common, each of them owns half (or some other defined portion) in his or her name alone. This is quite a different set-up than joint property. A tenants in common arrangement does not have a right of survivorship. You were able to move the joint tenancy properties because all you had to prove was that your mother lived longer than your father and that you are your mother's legal representative. Joint property passes outside of a person's will (that is, it is not controlled by the will).

Your father's half of the tenants in common properties, however, must be dealt with according to his will because he and your Mom did not own them jointly. To transfer real estate in one person's name, a will has to be probated. Because they are his assets, it has to be HIS will that is probated. In the absence of probating your father's will, you have no right to sell, transfer, or take his property. Probating his will gives you the legal authority you need to proceed.

This is really not an uncommon scenario. I see widowed people every day who tell me that they have never bothered to take their deceased spouse's name off the property. They know that they have a right of survivorship because of the joint tenancy so they just don't deal with it. Sometimes this works out alright, but as your case shows, sometimes it doesn't.

People often find it a pain in the neck to go through the process that they think of as simply jumping through hoops. However, the system is set up the way it is so that some person off the street cannot just show up and take a person's property. Proof and legal authority are needed to prevent fraud.

Had your Mom realized that two of the properties were set up as tenants in common, and had she realized what that meant in terms of the future, she might have dealt with their titles in her lifetime. That would have been ideal, but as I said, many people just don't realize that it's important.

As for paying the probate tax, I don't believe you will be paying it twice. In  your father's estate, you will pay probate fees only on the portion of the properties that are in his name. In  your mother's estate, you'll pay only on the portion that's in her name. There is no duplication there.