Losing a spouse is a very difficult and emotional time.
As it is typically the case, property is either held by the deceased spouse or jointly held between both parties. How you may sell the property depends on whether it was jointly owned (joint tenancy) or if it falls under rights of survivorship rights or tenants in common and if your home or property was held in your spouse's name or the real estate was held inside of a trust.
This information will be reflected in the deed and will show which type of ownership the property falls under.
Commonly, many spouses and married couples own their real estate through joint tenancy and rights of survivorship completely but they both encompass the sane meaning when one of the property owners passes away, the surviving spouse immediately takes over the ownership interests in the home or property.
If your home is owned with the right of survivorship in joint tenancy and if the death of your spouse occurs, you have the immediate rights to sell the home or property without the necessity of taking additional actions or further transferring the home into your name before selling.
Unlike joint tenants with rights of survivorship, homes or property owned as tenants in common don't automatically transfer to the surviving spouse, but must transfer to any beneficiaries or individuals named in the deceased's will or their wills if there is no will in place upon their death.
In these instances, the home or property must enter probate proceedings before the property can be transferred to beneficiaries or heirs.
If the deceased has a will in place and the property is left to the surviving spouse and is owned as tenants in common, then the surviving spouse must begin a probate proceeding before they can gain control of the property and obtain their deceased spouse's share of the property in order to sell the home.
In the event that a home or property was solely in the name of the deceased or owned by them individually, the transfer of the property must pass through to the beneficiaries as decreed by the deceased's will or their heirs.
Typically, the surviving spouse ultimately will inherit the property, however the surviving spouse must enter probate proceedings in order to gain control of the home or property before they are allowed to sell the home.
Many married couples hold their homes and property inside revocable or irrevocable trusts which eliminates the need for probate proceedings if either one of them passes away. In these instances, the terms of the trust specify what happens with the property as well as who will be enabled to control the property when one of them passes away.
In these types of trusts, it is typically stated that a surviving spouse is appointed as the sole trustee and typically happens automatically in the event of the death of one of the parties to the trust.
When the terms of the trust specify the surviving spouse gains control of the home or property in the event of the other's death, the surviving spouse can sell the property without any further waiting and immediately can take control of the properties that are held inside of the trust while also avoiding the need to enter probate proceedings.
In the event that a trust doesn't specify that a surviving spouse has the right to take control of the property upon the death, the trustee has sole discretion to take the actions necessary with the property to be as closely aligned with the deceased's wishes as stipulated in the trust.
If you would like more information on trusts, probate or selling real estate after the unfortunate event of your spouse passing away, contact us for a free consultation to learn more about your options.
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