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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 89141
Experience:  Fully licensed attorney in Texas in private practice.
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1. My wife and I have joint ownership with right of survivorship

Resolved Question:

1. My wife and I have joint ownership with right of survivorship on the deed for our house. When both of us are decease, our children will inherit the house because their names will be on the will to inherit the house. But, will the house have to go before the probate court and creditors before our children "really" inherit the house?
2. Can I put in a will what I want my wife to do with the house (the house in the above question) if she lives longer than I live? Will she have to honor the wishes I put in the will concerning the house although they may not be her wishes?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

1. My wife and I have joint ownership with right of survivorship on the deed for our house. When both of us are decease, our children will inherit the house because their names will be on the will to inherit the house. But, will the house have to go before the probate court and creditors before our children "really" inherit the house?

Yes, it would have to, generally speaking. When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into beneficiaries' hands.

Hence, probate is necessary. To avoid probate, a TRUST can be formed, but this will need an attorney to meticulously draft the trust instrument (document).

2. Can I put in a will what I want my wife to do with the house (the house in the above question) if she lives longer than I live? Will she have to honor the wishes I put in the will concerning the house although they may not be her wishes?

Not with the type of ownership you have. If you have joint tenancy - and you do (as opposed to tenancy in common) - your interest in the property simply becomes hers automatically if something happens to you. You cannot force her to do something with that interest under a joint tenancy. She may honor it, but at her discretion. Now, in a trust, this is different and then one has much more control of what happens after someone passes.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Thanks for helping me.


1. When the house go to probate court, will creditors have a chance to take it from my children (our children are in the will to inherit the house after we are deceased)?


3. Will my certificate of deposit have to go before the probate court before my wife can own it if she outlives me? (We have joint ownership with right of survivorship on the CD.)


3. But, can I "state" in a will what I want her to do although she has the right to do what she wants?


Expert:  Ely replied 1 year ago.
E,

Thanks for helping me.

My pleasure.

1. When the house go to probate court, will creditors have a chance to take it from my children (our children are in the will to inherit the house after we are deceased)?

I am afraid so. The creditors have a right to attempt to collect before the assets are passed on to the beneficiaries. If they must, the creditors can force a sale of the home for any debt owed by the estate. But again, a trust may protect the home and pass it to the children without it ever being probated.

3. Will my certificate of deposit have to go before the probate court before my wife can own it if she outlives me? (We have joint ownership with right of survivorship on the CD.)

Likely not. These normally pass outside of probate, provided that they have a special clause for this and have a written in beneficiary to have the CD passed/paid to. Check with the company hosting your CD.

3. But, can I "state" in a will what I want her to do although she has the right to do what she wants?

Right.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Thanks for your answers! But before you go, can you tell me:


1. If I enroll in the "Plus Pan" for $61.00 per month for unlimited answers, will it include the price for the chat we just had?


2. Can I cancel at anytime?


3. How do I cancel?


4. What is the "Premium Plan"?

Expert:  Ely replied 1 year ago.
E,

Again, you are very welcome.

Unfortunately, JustAnswer experts are not in charge of billing. All we do is answer questions. I do not even have access to your billing profile, for example. To get these questions answered, please visit JustAnswer's Black Belt Support here (see top right - "Customer Support"). They can answer these questions quickly and without any issue.

Apologies for not being able to give you that information, because all JustAnswer experts do is answer questions; we have no access or ability or even knowledge for billing issues.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 89141
Experience: Fully licensed attorney in Texas in private practice.
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Fully licensed attorney in Texas in private practice.