My husband and I co-own land which is with the mortgage on both our names. He does not have a will. If he dies the other half of the land will go to the probate court and will be divided among his children and possibly me. I will be solely responsible for mortgage payments no matter what. If we create a joint tenancy with right of survivorship deed, will the other half pass to me upon his death? What are other secure options? Thank you very much
Divorce / Separation Lawyer
First of all, and print out this answer and show it to your husband: Shame on him for not having a will. If he loves and cares about you it is frankly inexcusable that he has not done something that is so inexpensive with a lawyer. He should make an appointment this week. (I could add that he has made the same mistake as almost 8 out of 10 Americans, but it's still a mistake he can and should fix).
A joint tenancy with right of survivorship is one means to protect your interest in realty. A will is another. There are possible advantages and disadvantages depending on your overall financial situation. Note that in some cases you also might claim an interest in the home via year's support (which may tie in with a will probate, but won't tie-in with a joint deed).
This whole discussion is one to have with a lawyer, who can deal with the will and/or deed, and also can do related important documents - a durable power of attorney for one of you being disabled, and a health care directive.
Odds are that any of your collective options will cost just a few hundred dollars and will save everyone grief and expense in the future.
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I think you should consider having an estate planning attorney prepare a trust for both of you to avoid probate entirely. Maybe it's different in Georgia, but here in CA that's how most folks in your situation do it.
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To specifically answer your questions, you have a couple choices. One you already mentioned, converting your tenants in common deed to a joint tenancy with right of survivorship deed. The other one is for your husband to do "what needs to be done", namely, get a will. For their cost, they can save so much time, trouble and expense. Then as our California colleague points out, there are non-will alternatives, such as the use of a trust. While we are on this topic, it is different in Georgia. Our Probate process, for a properly drafted and executed will, is relatively easy and law cost requiring only a minimum of Court supervision. Because our probate process is relatively mild, we don't often use revocable trust merely to avoid probate. We do use them to avoid other problems, however, such as contentious families, and to enhance the rights of your survivors in your estate if there are certain situations present in your life that requires such measures. For example, if you are in a relationship the law doesn't recognize, and your families don't accept your partner, then a revocable trust is an excellent way of enhancing the rights of your in the event of death. Finally, it was mention our process of setting aside property from the estate of a married person an amount for a "year of support" for the benefit of the surviving spouse and dependent children. This is another way your interest in this property can be protected. The best thing you and your husband can do, however, is to meet with an estate planner, discuss your situation , and get an estate plan adopted based on your specific situation. Good luck.
I agree with my colleagues. Failure to establish proper estate planning in this situation is likely to lead to a huge mess for you. The exact tool(s) to be used depends on all of your objectives and facts not included in your summary. The key is to meet with an estate planning attorney while there is time to do so. Once the estate plan is complete, you will have peace of mind in knowing that you are not going to have a huge fight if something happens.
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Elder Law Attorney
Sounds to me like you have a "blended family." This means you are married to someone who has children from a previous marriage. Whenever I see one these cases the story of "Cinderella" comes to mind. From what you say in your question, you currently hold title with your husband as "tenants-in-common"giving you each an undivided one-half interest in the land. If he does not have a will, you would be entitled to 1/3 of his share of the land and his children would be entitled to the other 2/3 of his 1/2 interest. This would effectively make you partners with your husband's kids. You could each sign a new deed creating joint tenancy with right of survivorship. Then, if he died before you, title to the land would belong to you. Conversely, if you died before your husband, he would own all of the land and could leave it whoever he wanted to leave it to.
My usual advice in blended family cases is to not create a situation where you new spouse is in partnerhsip with your biological children. That is a recipe for disaster. I suggest hiring an estaet planning attorney who is experienced in working with blended families like yours.