Dear Mr. Premack: My husband died several years ago. He left a
Will. Our home was in both our names so I inherited it. I want to change
the title to my name only. I went to the courthouse and it's still under
both names. I was told I couldn't change it. Are they right? And if not,
how do I go about making the change? Thank you. – G.F.
Property is always owned by someone. Even when an owner dies, someone
else becomes owner in their stead. We just don’t always know exactly who
gets ownership, and that is where legal processes clear up the
The traditional way to know who gets ownership is to refer to the
decedent’s Will. Your husband did leave a Will so you know it
names you as his sole heir. However, the public in general does not know
about his Will, so no one is going to recognize you as owner until you
prove your status.
When you went to the courthouse and the clerks said you could not change
the title, they were correct but incomplete. That is understandable;
they do their jobs well but are not trained as attorneys. The title
paperwork can be changed by going through probate. That will result in
you becoming Executor of the estate or a court order that recognizes you
as owner of the house.
If you become Executor, you have broad authority to finish up your
husband’s business, pay his debts, and fulfill the terms of his Will –
including authority to sign a deed naming you as owner of the house. If
you obtain a court order (called “probate as muniment of title”) you
must show the court that your husband did not leave any unfinished
business or debts for an Executor to handle. If so, the order
establishes your ownership rights to the house based on the Will.
There are ways for people to set up their estates to avoid probate. Your
husband did not take advantage of any of these opportunities, so they
cannot help you now. But others can simplify the legalities by using
different legal tools, such as a Community Property Survivorship
Agreement or a fully funded Living Trust. Those techniques have their
pros and cons, so before any legal tool is selected a consult with a
qualified estate attorney is in order.
Dear Mr. Premack: I am an only child. My father died in early
2006 and my mother died a few months later. Their home was deeded to my
daughter 4 years ago, and the rest of their estates were left directly
to me in their Wills. Must I go through probate? Can I do the probate
myself, and can both be done at the same time? Thank you. B.L.B.
Your father’s Will probably left his estate to your mother, who did
outlive him. His Will must be probated so that she is recognized as
owner of the estate. She died a few months later, naming you as heir. It
must also be probated so that you are recognized as owner. The exception
would be for any non-testamentary assets, such as IRAs, life insurance,
or bank accounts with survivorship or pay-on-death arrangements.
You may claim those assets by presenting copies of their death
certificates to the financial institutions without probate.
If you have to go to court, you can represent yourself pro se. However,
the court and clerks will not offer themselves as a substitute for an
attorney. They cannot advise you on how to proceed, what options you
have or what steps to take. You’ll have to study up on that yourself at
the law library. Both probates can be done simultaneously, but there is
a separate probate process for each estate with all the associated legal
documents, filing fees and proofs being presented for each estate.