New widower probably needs to see lawyer


December 08, 2002

Dear Mr. Azrael:

My mother died in February 2001. She had a will that left everything to my father.

My father, who is 75 years old, wants to know if he needs to have my mother's name removed from the deed. There is no mortgage on the home.

My father's will leaves everything to his five children. He has no plans to sell the house in the near future.

Patty Smith


Dear Ms. Smith:

Since your mother has died, it would be a good idea for your father to review his current will and the property deed with his attorney.

There may be estate planning and other "elder law" issues to consider, and changes to your dad's will or the title to his home may be recommended. The value of his assets, the ages and circumstances of the beneficiaries and the manner in which your father wants to dispose of his estate are all factors that should be considered.

Most married couples hold title to their home as tenants by the entireties. This means that upon the death of one spouse, the survivor becomes the sole owner of the property by operation of law.

If your parents' home was titled in this form, it is not necessary for your father to remove your mother's name from the title. He can transfer the property by a deed which he alone signs. The deed will recite that your mother died and will give the date of her death.

A title company may require your father to produce a copy of your mother's death certificate to verify that she has predeceased him.

Similarly, a properly drawn will does not necessarily have to be rewritten upon the death of a spouse. Your father's will may clearly provide that if your mother dies before him, the home is devised to the children. Here again, an attorney can advise your father on whether a new deed is advisable.

For example, your father may consider creating a life estate, with remainder to the children, so the property will not be subject to probate when he dies.

Your father also may consider adding the children as "transfer on death" beneficiaries of his bank accounts, stocks or other financial accounts, so that these assets likewise will not be subject to a court probate.

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