A DEED OF GIFT WAS DRAWN UP YEARS AFTER OUR MARRIAGE ADDING MY NAME TO MY HUSBAND'S PROPERTY. IT STATES "DO HEREBY GRANT & CONVEY WITH GENERAL WARRANTY & WITH ENGLISH CONVENANTS OF TITLE UNTO SAID PARTIES OF OF SECOND PART THE FOLLOWING PROPERTY" .THERE IS NO "RIGHT OF SURVIVORSHIP, JOINT TENANCY, TENANCY BY THE ENTIRETY OR
TENANCY IN COMMON DECLARATION". HE HAS SAID I WILL OWN ALL THE PROPERTY IF HE PREDECEASES ME AND VICE VERSA. THEREFORE HE FEELS THERE IS NO NEED FOR A WILL AND THERE WILL BE NO PROBATE. WE BOTH HAVE CHILDREN FROM PREVIOUS MARRIAGES. IS HE CORRECT?
Estate Planning Attorney
Your situation is not one to be left to chance, and you should consult an attorney in Virginia Beach (assuming that is where you reside) to get to the bottom of this matter. The law regarding joint tenancies in Virginia states that unless the ownership specifically states "with survivorship" or other similar language, such persons shall own the property in a joint tenancy without survivorship (Code of VA §55-20.1). I would be more comfortable if the deed at least named you and your husband as tenants by the entirety. You specifically state in your question that there is no such language. It is my recollection that absent such language, parties own the real estate as co-tenants, and there is no expectation of survivorship.
Remember, in Virginia, where the deceased individual has children from a prior marriage an intestate estate passes 1/3 to the surviving spouse and 2/3 to all of the decedant's issue. If you are not satisfied with your share of the estate, as the surviving spouse, you can make an election against the "augmented estate" of your deceased spouse. The augmented estate includes not only probate assets, but also other assets passing to beneficiaries as a result of the decedent's death, and assets he gifted during his lifetime.
In the end, though, you just want to be able to stay in your home if your husband predeceases you. You should consult an attorney on this matter.
I am not giving you legal advice regarding your situation. This is intended to simply be informational, and does not rise to the level of legal advice. There is no attorney-client relationship created by my sharing this general information. You should consult an attorney licensed in your home state for specific advice regarding your particular situation. If you do not know an attorney in the Tidewater area that can help you, I would be happy to refer you to a few attoneys in that area who could help you in this regard.
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