Can My Will Pass Title To My House?

That depends on the ownership rights stated in the Deed to your home. The Deed will assist in determining who is entitled to the interest in your home upon your death.

In Maryland, there are a number of ways that a person can take title to real property. For example, real property may be conveyed to one person in fee simple, forever, or for the term of their life, or to a person's revocable trust. A Deed can also convey title to more than one person, which creates a concurrent ownership interest. The type of concurrent ownership interest which is conveyed will determine who gets a deceased owner's interest in the property.

If a Deed conveys real property to one person only, and does not state who is to get title to that property upon the owner's death, then the deceased owner's interest in the property will pass to those individual(s) named in their Last Will and Testament, or, if they did not have a Will, to those persons designated under Maryland's Intestacy Laws. If however, a life estate interest in real property is conveyed to an individual, and the Deed states that upon the death of the life estate holder, title to the property is to vest in another individual or individuals ("remaindermen"), then upon the death of the life estate owner, title to the property will pass to the individual or individuals designated as remaindermen. Again, if several individuals are named as remaindermen, their interest in the property will depend upon the type of interest that they holdas discussed below.

There are a number of types of concurrent ownership interest in Maryland. For example, under Maryland law, a husband and wife may hold real property as Tenants by the Entirety, which means that each of them own the entire interest in the property, and upon the death of one of them, while still married, the surviving spouse will get title to the entire property, by operation of the law. Accordingly, unless there is a mutual agreement providing otherwise, a Deed which is titled in the name of a husband and wife will be the document that passes title to that property upon the death of either spouse, and not the Will of the deceased spouse, or Maryland's Intestacy Laws.

The same is true if one or more persons hold title to real property as joint tenants, with the right of survivorship. That is, if a Deed conveys title to one or more individuals as joint tenants, with rights of survivorship, upon the death of one of the joint owners, their interest in the property will pass by operation of law to the other joint tenant(s), and not to those individuals designated in their Will.

Another type of concurrent ownership is Tenants In Common. Unlike property titled as Tenants by the Entirety or Joint Tenants, there is no right of survivorship in this type of ownership. The result is that each individualTenant in Common owner has a distinct, proportionate interest in the property which is freely transferable by them, during their lifetime and upon their death. Therefore, if the deed to real property states that the property is conveyed to one or more individuals as Tenants in Common, upon the death of one of the owners, their interest in the property will pass according to the terms of their Will, or if they do not have a Will, in accordance with Maryland's Intestacy Laws.

It is evident given the types of property ownership that exist in Maryland, that, if you wantto determine who will obtain title to your home upon your death, you should carefully review the Deed to your home, preferably with the advice of an attorney.

Published in the June 2010 issue of Generations newspaper.