TOP 5 MISTAKES HOMEOWNERS MAKE WITH DEEDS

What are Danielle’s top 5 mistakes homeowners make with real estate deeds?

1. Adding the name of a non-spouse to the deed to the house.

Many people add the names of family members to their deeds to avoid probate court without realizing the consequences.  When you add someone else’s name to your deed, then with most types of ownership interests, you cannot sell the property without their signature.  At our law firm, we have had multiple cases where an individual that was added to a deed as a convenience to avoid probate court, then refuses to sign off on the deed and essentially holds the original owner “hostage.”  When this happens, we need to pursue the case in court, which is never ideal.  One case involved an aunt who added all of her neice and nephews’ names to her deed to avoid probate court.  When she needed to sell her home so she would have money to pay her long-term care costs, however, they refused to sign off on the sale.  Eventually, she was given court authority to sell the home, but only after the headache and cost of going through the court system.

2. Incorrect ownership interest on the real estate deed.

There are different types of ownership interests with deeds, but oftentimes owners have no idea which way their deed is titled or how the ownership interest works.  One type of ownership is joint tenants with full rights of survivorship and another is tenants in common.  These two types of ownership have very different ownership interests.  When a deed designates the owners with “full rights of survivorship,” then one one owner passes away, the surviving owners own the property. This is what people often assume will happen when more than one owner is on a deed.  Meanwhile, when owners of a property are “tenants in common,” then when one owner passes away, their share goes on to their heirs through the probate court or their beneficiaries through their will.  That means that the surviving owners become co-owners with the deceased owner’s heirs or beneficiaries.  Homeowners should make sure to check their deeds to confirm that any ownership interests are titled properly.  Some homeowners find out too late that a deed is not done properly and then become co-owners with individuals that they never contemplated and may not get along with.  This can also hold up any real estate sales and financing since the interest is usually probated.

3. Using a trust as the owner of the real estate without updating the homeowners insurance.

When someone creates a revocable living trust, they may be advised by their attorney to put their real estate into the trust.  Sometimes this makes sense and sometimes it does not depending on facts of each case.  When real estate is transferred into a trust, however, you need to make sure to update the insurance policy on the property since the owner of the property changes to the trust.  There have been unfortunate occasions where someone transfers real estate into their trust and then fails to have the insurance coverage when they need it because they never changed the policy owner on the insurance policy. This can be a very costly mistake!  In addition, when real estate is in the trust and the real estate is sold, there needs to be a certificate of trust provided to confirm the names and authority of the current trustees. Normally, this is done by your attorney.  In order to avoid the need to update your insurance policy and provide a certificate of trust, we often use a different type of deed called a Ladybird Deed (some states refer to this as an enhanced life estate deed).  By using this type of deed, the ownership interest doesn’t transfer to the trust until the owner passes away.  This is often a preferred way to transfer the real estate into a trust, but since every case is different, you should make sure to discuss this with your attorney.

4.  Married couples that are not co-owners of their home.

There are significant advantages when a husband and wife own their home together.  Yet, many couples get married and don’t update their real estate deeds or alternatively, choose to keep the property in one spouse’s name alone.  By doing this, the married couple loses out on special creditor protection that is afforded to married couples.  When a home is jointly owned by husband and wife, then if one spouse is sued, the marital home is protected from their individual creditors.  I share more about this in my previous blog on the legal and financial advantages to marriage here.

5. Real estate owners without durable power of attorneys.

It is critical that all owners of real estate have a durable power of attorney.  Some types of ownership interests in real estate require all owners to sign off on the sale of a property.  If one of the owners is no longer competent or is incapacitated, then you would need their attorney-in-fact through their durable power of attorney to sign for them.  Alternatively, you would need to obtain a conservatorship in the probate court.  The last thing most owners want is to have a sale held up or lost because one of the co-owners is incompetent and cannot sign his or her name to sell the property.  If each owner has a durable power of attorney, then their designated attorney-in-fact can sign their name to the deed for any sales so this does not become an issue.

Where can homeowners go for more tips and information on real estate deeds for their home?

If you want more information and tips or want to schedule a legal consultation with Danielle, you can email her at contact@daniellemayoras.com or message her here.

Danielle Mayoras is a legal expert, author and attorney.  She is the co-author of Trial & Heirs:  Famous Fortune Fights!, a legal media expert, and keynote speaker.  You can find her on Instagram, YouTube, and LinkedIn.  For all of the latest legal news and helpful legal tips, advice and information, be sure to check out her blog.

DISCLAIMER: Nothing should be relied on as legal advice. The information contained herein does not create an attorney/client relationship. The information posted is intended for general information purposes only. Laws vary state by state. Anyone seeking legal advice for a specific situation should consult a qualified attorney or similar qualified professional in the appropriate state.

 

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    MEET DANIELLE

    Danielle Mayoras is an on-camera legal expert, attorney, author, and keynote speaker. As a respected media source, she has lent her expertise and analysis to hundreds of media sources, including The Associated Press, Los Angeles Times, ABC News, The Wall Street Journal, Vanity Fair, People, Forbes, Kiplinger, The Washington Post, Huffington Post, among many others. She has appeared on Access Hollywood, the Rachael Ray Show, The Insider, CNN, CNN International, NBC Nightly News, Forbes, The Hallmark Channel, ABC’s Live Well Network, CBS, FOX, PBS, and NBC affiliates. Danielle also serves as a legal analyst for CBS News Detroit.

    In addition to co-authoring the best-selling book Trial & Heirs: Famous Fortune Fights!, Danielle has been a contributor to Forbes and other outlets. Danielle has also appeared as a TV host and legal expert on multiple celebrity documentaries for the REELZ Channel. When not doing media, Danielle helps clients in her thriving law firm and serves as a keynote speaker delighting audiences across the country.