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Will vs. quitclaim deed: Which one wins out in the end?
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Will vs. quitclaim deed: Which one wins out in the end?

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Q: My friend filled out a will before she married her last husband. She owned a house, and when she married she did a quitclaim deed with her husband. Does the will still stand or does the husband get the house? She died a year ago and he wants to sell the house to use the money.

A: We get this question often and people tend to get confused between the decedent’s wishes during life and the decedent’s wishes in a will. The key to your question lies in the quitclaim deed that was used to transfer some or all of the property to your friend’s husband.

A quitclaim deed is a document that transfers ownership of something from one person to another. But it only works if you actually own the item you’re trying to transfer. For example, we could execute a quitclaim deed that gives you our share of the Brooklyn Bridge. Of course, we don’t own any part of the Brooklyn Bridge, so in effect, we’ve given you nothing.

That quitclaim deed governs who owns the property today. Your email stated that she quitclaimed the property to her husband. If we take your statement at its word, your friend conveyed her home (perhaps part, perhaps all) to her husband so that she no longer owned the home at the time of her death.

Once your friend conveyed the home to her husband, your friend’s estate no longer contained the property, so the will could not possibly distribute the property after she died. A will only works to distribute property owned by the decedent at the time of her death.

We did wonder whether your friend added her husband to the title of the home when they got married. When marrying, some people will take the time to change the way they own their real estate holdings. Rather than have title only in the name of one spouse or the other, they may place ownership of their home in joint tenancy with rights of survivorship. With joint tenancy, upon the death of one of the spouses, the home automatically is owned by the surviving spouse in its entirety. (The same goes for ownership that is held in tenancy by the entirety.)

It’s rare, but sometimes couples will transfer title to each other as tenants in common with each spouse owning a percentage share of the home, say 50% each or one spouse owning 75% with the other spouse owning 25%. Any percentage combination works with tenants in common, by the way. It could be 99% and 1%, or 33% for each of three owners.

When held as tenants in common, upon the death of one of the spouses, the interest of the deceased spouse doesn’t transfer automatically to the surviving spouse. The deceased spouse’s will would then govern who gets that person’s interest in the home subject to whatever marital rights the surviving spouse might have.

So, while you mentioned that she quitclaimed the home to her husband, it’s possible that she titled the home in both of their names as joint tenants with rights of survivorship when they were married. If this is the case, you’d end up with the same result. When she died, her interest transferred automatically to her husband and when probating her will, the home would already be owned by the husband, so the will would have no effect on his ownership of the home.

Given all of this, it’s likely her husband has the right to sell the home and use the proceeds from the sale as he sees fit. That may not be the answer you wanted to hear, but it’s the most likely scenario.

One final thought. People marry for various reasons beyond the Harlequin romance idea of love. We know several people who, over the years, abruptly married their long-time partners because they had received a grim health diagnosis and needed to make some tough decisions about their estate. Often in these cases, no one else was aware that the individual was sick until after their death.

Perhaps your friend received such a diagnosis and wanted to ensure her spouse received her property in the most expedient way possible. Then again, perhaps the quitclaim deed is fraudulent, which also happens.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)

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