Three years ago when my husband and I bought our first home together the mortgage was put in his name, the deed in both of our names. Today, we are in the process of refinancing with a new bank. The lawyer from the new bank called to confirm the name(s) on the mortgage and deed. I stated the mortgage is to be in my husbands name and the deed in both of our names just like the original mortgage and deed. The lawyer stated that my name is NOT on the original deed. What does this mean? I did not see or sign any paperwork from the original purchase nor for this refinancing. Does a spouse have to be on the deed to any property? Land? Building? Is it necessary? What does it matter if I am on the deed or not?
Real Estate Attorney
It does matter. First of all, the title or deed and the mortgage must match or the mortgage is not valid. Anyone who is on title or on the deed must consent to the fact that a mortgage is being placed as a lien against the property, as the property is being pledged as security to guaranty the repayment of the loan. So, if the lawyer is teling you that your name is not on the deed then it is not on the mortgage either. What should have happened was that your husband's name was on the note or the promise to pay back the loan, and both of your names would have been on the mortgage and deed. Since your name was not on the original deed you do not own any part of the house (with certain exceptions for divorce situations where a judge can ignore how title is held). As between husband and wife it is a good idea to have both names on the deed or title so that there are automatic rights of survivorship between you and the property does not have to pass through probate upon the death of one spouse. There are also tax advantages to having both names on the deed as there is a marital exception for property passing between husband and wife. If you are not on the deed and your husband passes away you coud inherit the house at the then market value, or stepped up basis, of the property and have a tax consequence. If both of you are on the deed as husband and wife you automatically have rights of survivorship and you inherit the house with a one time marital exclusion against capital gains taxes. Your name should be on the deed.
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Banking Law Attorney
I would take a look at the prior mortgage and and your foretitle to confirm where things stand. At the time, there may have been a reason to let title vest solely in your husband's name.
If you are not on the deed, technically, you are not an "owner" of the property - i.e. decisions relating to the home will be made by your husband - he would not need your consent or signature to move forward with a sale, mortgage, ect.
Many couples elect to have title in both names (My wife and I do); however, for professional reasons (liability for certain jobs, tax techniques, ect.) this may have been a conscious choice.
This can be easily rectified if the intent was to have both names on title.
Personal Injury Lawyer
Having your name on the deed proves that you are in fact the record land owner of the property. To answer your questions, a spouse does not automatically have to be on a deed. Rather it is a choice that you make after consulting with your attorney to determine if there is a reason why it should not be there. There are certain benefits to being on the deed, like right of survivorship, capital gains exempions, and others. It would also publicly show that you own an asset and could be a potential danger in case of liability and so forth. Consult with your refinance attorney. Remeber the bank attorney is not acting in your best interest. Their duties are to their client, the lender, not you. This does not mean they cannot give you general advice. But if you want personalized advice after weighing all your specific circumstances, it is a good idea to speak to an attorney who will only have your best interest in mind.
I would insist on having your name added to the deed. I closed plenty of real estate transactions where only 1 person was on the mortgage but both people were on the deed. If you are concerned with estate issues if your husband dies, I suggest setting up a Revocable Living Trust and transferring a deed to the house in the name of the trust where both of you would be the trustees.
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