Spouses generally hold real property as joint tenants with right of survivorship, community property or by tenants in entirety. Upon the death of one spouse, title automatically transfers to the surviving spouse by law through the issuance of a survivorship deed. Rights of survivorship laws vary in each state. The transfer of property not held jointly is determined by will, intestate law (no will) or by a trust.
Handling Your Estate after a Spousal Death
When a spouse dies with a will, property that is not jointly held is transferred to the heirs in accordance with the deceased spouse’s last will and testament. The procedure is as follows:
- The will is filed and recorded in probate court.
- The executor named in the will is authorized by the court to pay the debts of the deceased including funeral expenses and transfer any personal and real property to the heirs as set forth in the last will and testament.
- A survivorship deed is issued to the new owners.
When a spouse dies without a will, intestate law of the state where the spouse resided governs. The transfer of property is conducted as follows:
- An intestate matter is filed with the probate court by an attorney for the family.
- An administrator for the estate is chosen by the court.
- The administrator pays the debts out of the estate, and the court orders the transfer of the property in accordance with state laws.
- A survivorship deed is issued to the heirs that now own the real property.
Property Transfers in a Trust
When a spouse dies and property is held in a trust, the transfer is conducted as follows:
- The trustee named in the trust must notify the beneficiaries of the decedent’s death.
- The trustee must file any state and federal income taxes if due, and pay all other debts out of the trust property.
- The property is transferred to the beneficiaries in accordance with the trust provisions. The transfer does not require Court approval.
Help from a Real Estate Attorney
An estate tax and/or probate attorney can help with filing a probate petition, will and Intestate law matters in connection with the winding up of an estate and transfer of assets to the heirs. The attorney can also assist with trust matters, income tax, estate tax matters and will contesting issues and prepare a survivorship deed.