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Do I need to file probate in-order to get my current wife's name on deed of house which has my deceased wife's name on it?

Jacksonville, FL |

I bought a home with my first wife. both our names on deed. She passed away. She had a Will, it very clearly left everything to me. I remarried. Now I would like to add my new wife's name on the deed, but the clerk told me it can not be done. So i believe I must file "probate"? Is this correct or not? and for further information we did not have any children together, but she did have 2 children which are adults now. Further information, neither child has contested the will or expressed any dissatisfaction so i cant see any problems or what could be in the way, but that's why we need lawyers. So does probate clear this up & if so how?

Attorney Answers 5


  1. The facts are a little vague. If you owned the property as Husband and wife until her death, and the deed to the property reflects this type of ownership, then a probate is normally not necessary. Owning property as tenants by the entireties, allows the property to pass to the surviving spouse by operation of law. You would need to record a death certificate in the county where the property lay, and I suggest an affidavit of continuous marriage be also recorded. However, if you were divorced, then your interest in the property may have become that of tenants in common, which means her estate owned 50%, which would need to be probated.

    You need to have an experienced attorney review the fact history of the ownership of the property and any distribution due to a divorce, if any. The attorney could then explain your rights. Only if you own the full interest, will a properly prepared deed to the new spouse change the title status as you desire.

    The response given is general in nature and based upon limited information. It does not and cannot replace that of a proper consultation with a qualified attorney. You should not act upon this Information alone, but should seek legal counsel prior to taking any action.


  2. The question is how you held title to the property with your first wife. Did you buy the property when you were married as tenants by the entireties or joint tenants with rights of survivorship? if so, the property goes to the surviving joint tenant. Otherwise, it gets way more complicated, depending on how you took title and how old the children were upon the death of their mother.
    The question suggests that the will has been offered for probate and no one has contested the will.
    Is that correct? If so, your attorney should be able to advise you on your rights as the surviving joint tenant or designated beneficiary of the estate.


  3. If you and your first wife bought the property while you were married, it passed to you automatically on her death. You do not need any probate proceeding to establish this. You can add your new wife by deeding an interest in the property to her. The wording of your deed will be tricky, so rather than trying to do it yourself, you should consult an experienced real estate lawyer in your area.

    Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.


  4. First thing you need to know - Clerks are not attorneys and are not licensed to practice law. I am actually a little surprised that one weighed in with what is clearly legal advice. As mentioned, it depends on how the home is titled between the two of you. If it is as tenants by the entireties (which is the Florida default for married couples), then you own the home outright. You can add your new wife to title by recording a new deed. Have a local real property attorney take care of this for you - it shouldn't be very expensive, but will ensure that it is done correctly.

    Carol Johnson Law Firm, P.A. : (727) 647-6645 : carol@caroljohnsonlaw.com : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.


  5. I think it is worthwhile to sit down with an attorney for an hour or two, and have him review all of the facts. As the other attorneys have indicated, if you owned the property as husband and wife, and you were married to your spouse at the time of her death, the property should have passed to you by operation of law. You would need to file the death certificate, a DR-312 (affidavit of no Florida Estate Tax) and an Affidavit of Continuous Marriage. The attorney can prepare these documents for you. (If there was a Federal Estate Tax due on your first spouse's death, the issue is more complicated). Once these documents are filed with the Clerk of Courts, you can have the attorney prepare a new deed adding your new spouse.

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