Selling home after wife’s death depends on husband’s standing
Ilyce Glink and Samuel J. Tamkin
Q: My wife passed away last year, and she was on the mortgage to the home and on the title to the house deed. I’m not on the mortgage but am on the deed. Do I have the right to sell the property? And if so, what must I do to do so?
A: Owning a home and having a mortgage on a home are two separate transactions. When you buy a home, you can buy it without ever having a mortgage on it and you would own it free and clear.
Most homebuyers don’t have enough cash on hand buy a home outright, so they need to go to a lender and borrow money. When you have a lender, you still own the home. It’s just that you now own a home that is subject to the rights of the lender to be repaid if the home is sold or to take control of the property and sell it if you fail to make your mortgage payments.
As long as you and your wife owned the home as joint tenants with rights of survivorship, you should be set. Joint tenancy gives the surviving owner automatic ownership of the home upon the death of the co-owner.
There are times, however, when couples might own a home as tenants in common. Frequently, you will see tenants in common when they buy a home and the document talks about one owner owning a 75 percent share of the home and the other owner owning 25 percent. So, if you see title to a property that lists different owners having a percentage interest in the home, or the deed states that the owners hold title as tenants in common, then when one owner dies, that owner’s share in the home goes to his or her estate.
Once in the estate, the property then goes to whomever is designated in the will of that person or as required by law. Sometimes, a deed must state that the owners take title as joint tenants with rights of survivorship. If it doesn’t say joint tenants with rights of survivorship or at least joint tenants, then the law might imply that the owners were tenants in common.
In your situation, if you and your wife owned the home as joint tenants, when she died you automatically became the owner of the home. Upon her death, as a joint tenant, you became the sole owner of the home and could move forward to sell the home. Your only issue is in dealing with the lender. Sometimes lenders get careful when they deal with the spouse that is not on the mortgage, so you might seek advice from a real-estate attorney.
On the other hand, if you and your wife were tenants in common, you certainly own your share of the home, but you will have to get control of your wife’s share of the home to sell it. This means that if she died with a will, you might have to get the cooperation of the executor of her will to assist in the sale of the home. You may be the executor, but you now wear two hats. One is as the owner of the home and the other is as the executor.
Send questions to Realestate Matters, 361 Park Ave., Suite 200, Glencoe, IL 60022, or contact author Ilyce Glink and lawyer Samuel Tamkin at www.thinkglink.com.