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Iowa House Re Title At Death of Spouse

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FallOf81

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Oct 24, 2017
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I've come across an Iowa situation and wondering if someone can shed some advice on this. Have a friend who's husband has just passed. They titled their house as "tenants in common" rather than "Joint with rights of survivorship". This was done in 2014 when they bought the house .... and it was titled that way because that's how things were done, I'm told.
Now that he's passed, she began work via an attorney on getting it put in her name. He tells her it's going to be a long and expensive process. His fee around $5K. Plus there will be court fees, etc. Will take 6 to 9 months.
He said awhile back state law changed and if your property is currently titled this way ... beginning in 2015 or later, you don't have to go through all this crap.
There's got to be a cheaper and faster way to get this into her name only. Help. Thanks!
 
FallOf81 said:
I've come across an Iowa situation and wondering if someone can shed some advice on this. Have a friend who's husband has just passed. They titled their house as "tenants in common" rather than "Joint with rights of survivorship". This was done in 2014 when they bought the house .... and it was titled that way because that's how things were done, I'm told.
Now that he's passed, she began work via an attorney on getting it put in her name. He tells her it's going to be a long and expensive process. His fee around $5K. Plus there will be court fees, etc. Will take 6 to 9 months.
He said awhile back state law changed and if your property is currently titled this way ... beginning in 2015 or later, you don't have to go through all this crap.
There's got to be a cheaper and faster way to get this into her name only. Help. Thanks!
Click to expand...
I think I would start by going to the court house and asking them what I need to do. I doubt it's that difficult that you need an attorney.
 
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I'm no attorney, but what the attorney is likely referencing is this change to Iowa Code in 2015:


I don't know how a deed filed prior to 2015 would be interpreted, but if the deed explicitly says "tenants in common" I know transfer of the deceased's rights to title is a lot less clean than "joint with full rights of survivorship."
 
FallOf81 said:
I've come across an Iowa situation and wondering if someone can shed some advice on this. Have a friend who's husband has just passed. They titled their house as "tenants in common" rather than "Joint with rights of survivorship". This was done in 2014 when they bought the house .... and it was titled that way because that's how things were done, I'm told.
Now that he's passed, she began work via an attorney on getting it put in her name. He tells her it's going to be a long and expensive process. His fee around $5K. Plus there will be court fees, etc. Will take 6 to 9 months.
He said awhile back state law changed and if your property is currently titled this way ... beginning in 2015 or later, you don't have to go through all this crap.
There's got to be a cheaper and faster way to get this into her name only. Help. Thanks!
Click to expand...
I am guessing here because I haven't seen the deed obviously. But what I think the attorney is talking about is that is used to be that if nothing was mentioned (joint tennancy or tennants in common) then tennnants in common would be assumed in all cases. But that changed and now if there is no mention of how title is held but the grantees are married it is assumed joint tennancy. He is correct that it is along process because what needs to happen is that an estate has to be opened in order to transfer the deceased's interest to the spouse.
Why does she need the title changed right now? Is she selling the property?
 
Halincandenza said:
I am guessing here because I haven't seen the deed obviously. But what I think the attorney is talking about is that is used to be that if nothing was mentioned (joint tennancy or tennants in common) then tennnants in common would be assumed in all cases. But that changed and now if there is no mention of how title is held but the grantees are married it is assumed joint tennancy. He is correct that it is along process because what needs to happen is that an estate has to be opened in order to transfer the deceased's interest to the spouse.
Why does she need the title changed right now? Is she selling the property?
Click to expand...
Thanks.
Really doing it more to clean up the loose ends and move on. She is not selling the property in the next few years.
Attorney even mentioned if there was a fire, and a settlement check issued, there would be two checks issued. One to her and one to her deceased husband.
 
Halincandenza said:
I am guessing here because I haven't seen the deed obviously. But what I think the attorney is talking about is that is used to be that if nothing was mentioned (joint tennancy or tennants in common) then tennnants in common would be assumed in all cases. But that changed and now if there is no mention of how title is held but the grantees are married it is assumed joint tennancy. He is correct that it is along process because what needs to happen is that an estate has to be opened in order to transfer the deceased's interest to the spouse.
Why does she need the title changed right now? Is she selling the property?
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Estate. An owner died. They messed up. Should have had joint tenants in common with rights of survivorship. Fixable but costs money. Individual Bank Accounts separate should be made payable on death to the other spouse. Then bank account does not pass through probate. People need to do their homework.
 
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FallOf81 said:
Thanks.
Really doing it more to clean up the loose ends and move on. She is not selling the property in the next few years.
Attorney even mentioned if there was a fire, and a settlement check issued, there would be two checks issued. One to her and one to her deceased husband.
Click to expand...
Yeah, it is a pain. What I think she should explore is filing a title claim and allege that the closing company messed up when they didn't include the joint tennancy language. Maybe her attorney has mentioned this option but it might be possible to get the title insurance company to cover the costs of opening an Estate to transfer title.
 
Unusual that a married couple would do tenants in common and not joint tenancy.

Joint tenancy - as noted above - includes right of survivorship.

Meaning if my wife and I own the house together and one of us passes then she or I would assume 100% ownership. No other descendants or heirs would have any rights until the second of us passes.

Tenants in common can get weird if it’s a non married couple or say, for example, they have kids from a prior marriage. Wife’s heirs would receive their half of rights to the property upon her death.

An attorney here may be able to confirm or clarify my understanding. This is my understanding from working in the real estate/mortgage business.

I’ve never worked real estate transaction in Iowa but in most states it is customary for buyers to select one of these two options prior to closing and drawing up the mortgage/title documents.

Assuming your friend still has a copy of those they hypothetically could prove that it was an error in recording. Or also realize that was, in fact, what they selected.
 
Another example of why couples when they get up there in age should transfer all assets into a family trust, allowing for ownership of everything to pass to the remaining spouse once one has passed on.
 
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Could you maybe reach out to the Danilson's who sponsor from of the pods that CW and team do each week. They are real estate lawyers. I have spoken/worked with them in the past on something different and they are great:

Home

danilsonlaw.com danilsonlaw.com
 
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SEIOWA CLONE said:
Another example of why couples when they get up there in age should transfer all assets into a family trust, allowing for ownership of everything to pass to the remaining spouse once one has passed on.
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Is a trust necessary? Set your ownership titles so surviving spouse automatically receives them at death. My vehicles are listed as both both owners with OR in between names. Bank accounts separate with POD to surviving spouse. Joint tenants in common with rights of survivorship. And I have a will. Trusts are not always desirable IMO.
 
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Stormin said:
Is a trust necessary? Set your ownership titles so surviving spouse automatically receives them at death. My vehicles are listed as both both owners with OR in between names. Bank accounts separate with POD to surviving spouse. Joint tenants in common with rights of survivorship. And I have a will. Trusts are not always desirable IMO.
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It just speeds up the process and when those funds are passed to the children, it will save them quite a bit of money. A trust would not necessarily speed up the process passing from one spouse to another, but you have to think ahead and worry about those items of value being passed to your children. A will is going to cost them more money on your passing than a trust will. Trusts are paid for by the person or couple that takes them out, while a will is going to cost the heirs more when they receive their inheritance.
 
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SEIOWA CLONE said:
It just speeds up the process and when those funds are passed to the children, it will save them quite a bit of money. A trust would not necessarily speed up the process passing from one spouse to another, but you have to think ahead and worry about those items of value being passed to your children. A will is going to cost them more money on your passing than a trust will. Trusts are prepared by the person or couple that takes them out, while a will is going to cost the heirs more when they receive their inheritance.
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There are postives and negatives of each. Depending whether you have an irrevocable or revocable trust (been a while since I dove into this so definitely correct me if they have changed), some will allow a stepped up basis and others won't. Some will be shielded from outside seizure from things like nursing home expenses/medical costs while others won't.

While today the estate tax threshold isn't as much of a concern, but 10-15 years ago it was around 600-1MM of total assets. If you are over the threshold, then it's best to have each person pass their half down and have the partner have a life estate in the other half to double the amount that can be passed to heirs.
 
BCClone said:
There are postives and negatives of each. Depending whether you have an irrevocable or revocable trust (been a while since I dove into this so definitely correct me if they have changed), some will allow a stepped up basis and others won't. Some will be shielded from outside seizure from things like nursing home expenses/medical costs while others won't.

While today the estate tax threshold isn't as much of a concern, but 10-15 years ago it was around 600-1MM of total assets. If you are over the threshold, then it's best to have each person pass their half down and have the partner have a life estate in the other half to double the amount that can be passed to heirs.
Click to expand...
Right now, you can pass almost $13 million to your heirs before any estate tax is paid, so few will even have to worry about it. To shield your assets from a nursing home they have to be in the trust 5 years before you enter the home.
Each person's situation is different, spend a few hundred and sit down with a lawyer and have them walk you through the process that would be best for you, this is especially true as you have kids and are getting older.
 
SEIOWA CLONE said:
It just speeds up the process and when those funds are passed to the children, it will save them quite a bit of money. A trust would not necessarily speed up the process passing from one spouse to another, but you have to think ahead and worry about those items of value being passed to your children. A will is going to cost them more money on your passing than a trust will. Trusts are paid for by the person or couple that takes them out, while a will is going to cost the heirs more when they receive their inheritance.
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Cost of the lawyer. Maximum is 2% attorney fees for an estate. And that fee is negotiable. So the couple pays the fees for the trust. Those fees are subtracted from the assets from the couple which lowers their cash. Which means they leave less to heirs. Sometimes Trusts have management fees. Trusts are not always the best option. And you can certainly have issues. Just saying. Each situation is different.
 
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SEIOWA CLONE said:
Right now, you can pass almost $13 million to your heirs before any estate tax is paid, so few will even have to worry about it. To shield your assets from a nursing home they have to be in the trust 5 years before you enter the home.
Each person's situation is different, spend a few hundred and sit down with a lawyer and have them walk you through the process that would be best for you, this is especially true as you have kids and are getting older.
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If you have $13 million, nursing home costs should not be a problem. And that is per person exemption. Couple has 2 exemptions.
 
Stormin said:
Is a trust necessary? Set your ownership titles so surviving spouse automatically receives them at death. My vehicles are listed as both both owners with OR in between names. Bank accounts separate with POD to surviving spouse. Joint tenants in common with rights of survivorship. And I have a will. Trusts are not always desirable IMO.
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Trusts are very expensive.
 
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