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