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Shorewood Quit Claim Deed Lawyer: Amending Title By Adding or Removing a Spouse

 Posted on March 09, 2023 in Estate Planning

Plainfield Real Estate and Estate Planning Attorneys

Whether a couple purchases a home together and later gets divorced or individual purchases a house and later gets married, both instances are sufficient to warrant a change in title to the property. When changing the name on the title, a Quit Claim Deed can be drafted to add or remove individuals from the title. A Quit Claim Deed differs from a warranty deed because no warranty is attached to a quit claim deed. This means the grantor transfers whatever interest they have in the property to the grantee, with no special warranties protecting their interest. Therefore, when adding a spouse to the title, it is imperative to find an attorney that understands the different types of ownership classifications to ensure ease of transition upon the death of one of the spouses. At Peace of Mind Asset Protection, LLC (a division of Gateville Law Firm), our staff and attorneys are thoroughly trained in both real estate and estate planning, so our firm understands the interplay between the two areas of law and can effectively transfer title about the specific factual circumstances of the individuals.

Adding a Spouse to Title

When adding a spouse to the title, there are important questions that an attorney should ask, such as whether the individuals are married or whether they hold themselves out to be married. This is because married couples enjoy a particular classification that can help protect them from creditors, but there must be a valid and current marriage. The different types of ownership classifications must be understood to understand the effectiveness of a quit claim deed.

1. Tenants in Common

The first type of ownership, and the default if not explicitly stated otherwise, is a tenancy in common. Tenants in common do not need to own an equal share of a property. This means that if the property is titled to both A and B, A could own 2/3 of the property, and B could own 1/3. While both parties have a right to occupy the entire property, their respective shares will transfer down their line of descendants upon death. For example, suppose A dies. A's 2/3 interest will pass down based on the terms of the Will or Trust if one was created or will follow the intestacy statutes if one was not completed. B will still own its 1/3 share irrespective of how A's 2/3 interest is transferred. In other words, a tenancy in common does not have a right of survivorship, and the parties' interests in the property remain separate. This is not a suitable ownership method for married individuals because the title does not automatically transfer upon death. A probate process must follow to distribute the deceased titleholder's share.

2. Joint Tenants with Right of Survivorship

There are critical differences between tenants in common and joint tenants. For example, joint tenants will acquire equal shares of the property. This means that if the title is conveyed to A and B and joint tenants, they each receive a 50% interest in the property at the time of transfer by the same instrument. Otherwise referred to as a unity of ownership, joint tenants can still utilize the entire property even though they only own a divided interest. The benefit of a joint tenancy is that it has a right of survivorship. If A dies, A's interest in the property will automatically pass to B, and B will then own the property 100%. A joint tenancy is preferred for couples who are together but are not married or for other types of tenancies, such as a parent and child living together. Joint tenancy ownership creates ease of transition in that probate is not required for the property. A Deceased Joint Tenancy Affidavit is needed to remove the deceased individual from the title. 

3. Tenancy by the Entirety

The final type of ownership classification is a tenancy by the entirety. This is a similar ownership classification to joint tenancy, with two caveats. First, to be tenants in the entirety, the individuals must be married to one another at the time of transfer. Second, tenancy by the entirety is only available for homestead property, namely the marital home. Any investment properties or vacation homes cannot be classified as a tenancy by the entirety of ownership. The tenancy offers added protection for married couples as a creditor's claim against one spouse cannot affect the property with both spouses' names on it. In other words, only joint claims against both spouses can encumber the property. Tenancy by the entirety is not an assumed ownership classification, meaning that it must be stated explicitly in the deed that the ownership is a tenancy by the entirety.

Removing a Spouse from Title

If a spouse's name is already on the title, a quit claim deed can be done removing their name for whatever reason, whether it be due to divorce or otherwise. A critical factor in removing a spouse's name from the title is that all parties acting as grantors must sign the deed. For example, if A and B were the joint tenants of a property and B wanted to be removed from the title, a quit claim deed would be drafted stating that A and B convey their interest to A. Since A and B are both considered the grantors, they would both need to sign the deed conveying the property to A. 

Plainfield Experienced Real Estate and Estate Planning Attorneys

When it comes to quit claiming property, many questions need to be answered to ensure that the correct ownership classification is made to both protect the parties and assist in ease of transition upon the death of one of the parties. With a clear understanding of real estate and estate planning, key facts might be noticed, resulting in a more desirable outcome for the individuals. At Peace of Mind Asset Protection, LLC, our attorneys and staff understand the intricacies of real estate and estate planning. They can assist clients in finding the ownership classification to best fit their situation and need. For more information on our services, please call our office at 630-780-1034.

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