What is the Best Way to Set Up House Deed if I Pass Before My Husband?

Attorney Thomas B. Burton answers the question: "What is the Best Way to Set Up House Deed if I Pass Before My Husband?" in this latest episode of our popular question and answer series.

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Hello, I'm Attorney Thomas Burton.

I'm an estate planning, asset protection and business attorney here in Wisconsin and today we return to our popular question and answer series and today's question is the following -

"What is the best way to set things up for, if I pass before he does? I purchased a home before I met my husband. The deed and loan are in my name only. I would like for things to just go to him, so he has a home with our children."

There are a couple of ways you could go about this, depending on how titled to the deed reads now, you could pass this house to your husband via deed or via your will or trust at death. Doing it in your estate plan as part of your will or trust, may make sense because you still have a mortgage on the house and you could also spell out if your husband will have complete control over the house or if instead, he will have the right to live in it until he dies etc. with the remainder going to your children.

So I cannot tell here if the children are all shared by your marriage, if they're all children from your marriage then you may be more comfortable just leaving it directly to the husband and having him in his will, leave it to the children. What we often do with married couples is we do what we call 'mere wills', so each will mimic the provisions of the other then no matter which person passes first, it leaves the house to my spouse, if they survive me and if not to my spouse than to my children.

But in blended families, sometimes you want to restrict the ability of the surviving spouse to change title to the home after you die or change the beneficiaries. For instance, leave it all to their children and cut out your children entirely. If that's your situation, then you might want to look at passing the home through your will or trust to your husband and again, it depends on the value of the home and the equity involved here whether this makes sense cost wise for you.

The simplest method would be to just add him to the deed as a husband and wife as survivorship marital property in Wisconsin. That's a way spouses can own property as marital property and completely avoid probate upon the first spouse death. It transfers automatically to the surviving spouse.

Now you want to be aware, you want to look at how much equity you had in the home before the marriage and decide are you willing, do you want to make the entire home marital property. I would need more details about your date of marriage, the value of the house, what you put in before marriage, how you pay for expenses now, things like that but if you retitle it that way, for sure it will be marital property.

So there's a variety of factors to consider here. I would sit down with a qualified estate planning attorney before deciding which option is best for you and be aware, if you add him to the deed, check your mortgage. Generally adding someone to the deed will not add them to the mortgage. So if you want him to also be responsible for the mortgage, you might want to look at refinancing and then putting the home into both your names with both of you on the mortgage. If you're going to refinance it anyway, that's often a good time to change the title to the deed. Otherwise, if you do it on your own, you will have to pay an attorney to draft the deed, record it and then the filing fees with the registered deeds. So what I'm saying is, if you're looking at refinancing with low interest rates right now, you're going to pay certain costs to refinance and closing costs once again and such and you could do that all at the same time with this deed change but again, I would sit down with a qualified estate planning attorney, discuss your options and then decide on the best plan for you.

Great question and thank you for asking.

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