Divorce/will....

[kathleenrp]

What is the name of your state (only U.S. law?
I live in Tennessee in home jointly owned with ex-spouse (divorce final July 2010). Ex-spouse died 5 weeks ago. Divorce decree states "This property shall remain owned as tenants by the entirety. Parties acknowledge that to continue to hold this real property under this classification of title means that should either party die, the other party would own the property in its entirety without regard to any other surviving heirs of the deceased spouse."
Ex-spouse's will dated 1993 makes our 19 year old daughter the sole heir to his estate. Does the will trump the divorce decree and daughter now owns ex-spouse's share of the property or do I own the property alone? If so, how do I get the property titled in my name? (estate is in probate process but no court date yet)

 

[nextwife]

You can't will away what you don't own. If title was held between you in a manner that passes ownership to the surviving co owner at death, the property is not part of his estate.

 

[mistoffolees]

You can't will away what you don't own. If title was held between you in a manner that passes ownership to the surviving co owner at death, the property is not part of his estate.

That is absolutely true.

However, probate can be a mess and since there's significant value involved (there is probably a good deal of equity), I would definitely want my own attorney.

 

[LdiJ]

What is the name of your state (only U.S. law?
I live in Tennessee in home jointly owned with ex-spouse (divorce final July 2010). Ex-spouse died 5 weeks ago. Divorce decree states "This property shall remain owned as tenants by the entirety. Parties acknowledge that to continue to hold this real property under this classification of title means that should either party die, the other party would own the property in its entirety without regard to any other surviving heirs of the deceased spouse."
Ex-spouse's will dated 1993 makes our 19 year old daughter the sole heir to his estate. Does the will trump the divorce decree and daughter now owns ex-spouse's share of the property or do I own the property alone? If so, how do I get the property titled in my name? (estate is in probate process but no court date yet)

The house should not be part of the estate therefore not part of the probate case either. I do however agree with Misto that its probably more practical/safer to have an attorney handle the transfer of the deed.

 

[nextwife]

The house should not be part of the estate therefore not part of the probate case either. I do however agree with Misto that its probably more practical/safer to have an attorney handle the transfer of the deed.

In many states, and I do not know if TN is one, the Termination of Decedent's Jt Interest is accomplished by merely filing a form with a copy of the death certificate. If TN is one, there need not be any "transfer of the Deed" The Termination merely removes the deceased co-owner's interest, and is a very basic form that my 14 year old could easily prepare. At least here in WI and some other user friendly states it is. The poster should investigate this by calling a local title company and asking if they know of PARTICULAR FORM they need to see in ther search to remove a decedent's jt interest and what that form is.

If there are OTHER assets subject to probate, an attorney may be needed, however for those.

 

[mistoffolees]

In many states, and I do not know if TN is one, the Terniation of Decedent's Jt Interest is accomplished mt merely filing a form with a copy of the death certificate. If TN is one, there need not be any "tranfert of the Deed" The Termination merely removes the deceased co-owner's interest, and is a very basic form that my 14 year old could easily prepare. At least here in WI and some other user friendly states it is. The poster should investigate this by calling a local title company and asking if they know of PARTICULAR FORM they need to see in ther search to remove a decentent's jt interest and what that form is.

If there are OTHER assets subject to probate, an attorney may be needed, however for those.

Even if they have to transfer the title from "joint tenants in common" or "tenants by the entirety" (wording varies by state) to a single owner, that's the simple part. Any title company can do it and it shouldn't be expensive or time consuming.

The concern is that ex's heirs will try to make an issue of it. If that happens, it could be an expensive battle.

If it were me, I'd talk with an attorney now. It is entirely possible that given the date of the divorce decree and the wording therein, that the title company might have what they need to transfer the title entirely to OP (but do so only on the advice of your attorney). That would make it harder for ex's heirs to contest (although not impossible).