Clear up my understanding of real estate ownership

[Curious2134]

What is the name of your state? Missouri

My ex-wife and I divorced in the early 90s and a number of years ago got back together and recently purchased a home. No plans to re-marry. All kids are ours except one she had before we were married but as far as anyone is concerned (other than legally), I’m her dad. Even walked her down the isle. I realize this might affect inheritance to her should her mother die before me but that’s not my concern with this question.

Our deed that the prior owners signed to us and recorded with the county does not state tenancy in common, joint tenancy, or transfer upon death. Neither of us really even knew about the ways to deed a house.

We want to protect each other’s interest in the home if one of us should die or acquires massive medical bills down the road. We don’t want the house taken away from the healthy/living one or, if possible, be a financial burden due to trying to keep the house.

Also, we will be seeing an estate attorney but I would rather find out what I can before then so I am not paying him to tell me something I could/should already have a basic understanding of.

From my reading it appears I want joint tenancy with transfer upon death somehow included on the deed. The three things I don’t quite grasp are: 1) I don’t know where to start to change a deed and 2) I don’t know if this or anything will accomplish what we are looking for and 3) I am mixed on the understanding if a deed without saying anything specifically about tenancy would default to joint tenancy or tenancy in common.

Currently it’s a general warrantee deed. We’re both on it with our names, and included is “unmarried” by our names. “Joe Blow and Jane Doe, Unmarried”

Thank you and I’m sorry if I sound too ignorant about this – but it’s because I am. Even a pointer on what to go read, I’d do that too instead of asking for more detail to the above 3 concerns.

 

[Taxing Matters]

From my reading it appears I want joint tenancy with transfer upon death somehow included on the deed. The three things I don’t quite grasp are: 1) I don’t know where to start to change a deed and 2) I don’t know if this or anything will accomplish what we are looking for and 3) I am mixed on the understanding if a deed without saying anything specifically about tenancy would default to joint tenancy or tenancy in common.

Currently it’s a general warrantee deed. We’re both on it with our names, and included is “unmarried” by our names. “Joe Blow and Jane Doe, Unmarried”

Typically in the case of unmarried persons who buy property together the ownership is by tenants in common (TIC) unless the deed specifically states that it is joint tenancy with a right of survivorship (JTWROS). You'll want the lawyer to look at the deed and advise if the property is indeed currently held as TIC. If it is then you can change it to to JTWROS by executing the appropriate deeds. States vary on how you'd have to do this. Some require that you first execute a deed to a third person (a strawman) and then that person then does another deed back to the two of you. In other states you can simply do a single deed from yourselves to yourselves to accomplish the change in the type of ownership. The real estate lawyer you consult will know what needs to be done.

Just bear in mind that JTWROS will not protect your interest in the property from your creditors while you are alive. Your creditors will be able to attach your share of the property while you live just as they would if the property is held TIC. The difference is that in at least most states when you die before the other owner does your interest in the property simply disappears — it does not transfer to the other owner. As a result, any liens against you one property effectively die when you do when ownership is JTWROS. Under TIC, your interest does transfer to your estate, and from there transfers to whomever your beneficiary is, and any lien recorded on the property before your death follows the property with each transfer of your interest in it.

 

[adjusterjack]

Currently it’s a general warrantee deed. We’re both on it with our names, and included is “unmarried” by our names. “Joe Blow and Jane Doe, Unmarried”

If you don't need a straw man, all it should take is executing a new deed conveying the property from "Joe Blow and Jane Doe, unmarried" to "Joe Blow and Jane Doe, unmarried, as joint tenants with right of survivorship."

Have a lawyer do it. For a couple of hundred dollars you get it done right and properly recorded.

 

[FarmerJ]

The best thing I can think of would be for the two of you to go find a Gay or Lesbian attorney who knew how to draw up ALL the paper work for partner agreements and wills and estate planning they used to have to do to try to protect gay and lesbian clients who for many years could not marry. WHY a Gay or Lesbian attorney ? because its likely they did far more of them than attorneys who were not gay or lesbian since its more likely that couples in the G & L community would have sought them for such legal work= more experience.

 

[Taxing Matters]

The best thing I can think of would be for the two of you to go find a Gay or Lesbian attorney who knew how to draw up ALL the paper work for partner agreements and wills and estate planning they used to have to do to try to protect gay and lesbian clients who for many years could not marry. WHY a Gay or Lesbian attorney ? because its likely they did far more of them than attorneys who were not gay or lesbian since its more likely that couples in the G & L community would have sought them for such legal work= more experience.

I disagree that finding an attorney who is gay or lesbian would be an effective way to find the right lawyer for this. It might surprise you that most gay and lesbian lawyers do not work expressly or even primarily on gay and lesbian issues. They work in all areas of law, just like straight lawyers do. Moreover, there are a lot more straight unmarried couples out there than gay couples and unmarried couples — gay or straight — have similar issues. Finally, many attorneys who have had a practice of advising gay and lesbian couples were not themselves gay or lesbian.

The OP's particular issue is not all that complex, really. Any estate planning attorney can advise them on how to protect themselves in regard to the house in the event of death. As to the particular issue of how to get title to the property converted from TIC to JTWROS, that's something a real estate attorney would know best. That is not something an attorney who helped gays and lesbians in family law or estate planning issues would have dealt with all that much. Certainly no more than any other family law or estate planning lawyer would have.

 

[Curious2134]

Thank you all for your information. Truly helps our situation. She and I are more confident in our understanding of what needs done and the questions to present so we're not wasting people's time and our money.