Husband died without a will.

Question

My husband died without a will. Our home is in both names. The mortgage company is willing to refinance, but the title company will not give the ok because our current deed/title is not vested. Probate Court Clerk said that I have to go through probate and our children have to sign papers (they are willing to do that) and that it is about 2 month process. My problem is that he had some credit cards in his name only. I know that I am not responsible for those. If I file probate can those creditors reach out and take any of our furniture, car, etc.? Is there any other way I can have his name removed from our title without going through probate?

Rachel Lea Hunter · Answer

I don't quite understand.  If the house was owned as a joint tenancy with right of survivorship, then title to the house automatically passed to you.  The house would not be a part of probate so I do not understand why the children need to sign anything.
If the house is not a part of probate then it is exempt from the claims of creditors.  If there is a probate, then a personal representative is appointed.  The personal representative's job is to figure out what the deceased (your husband here) owned and owed, to pay his just debts and distribute what is left to you and any other heirs.
Debts have to be paid before the heirs get anything except for the yearly allowance.  You do not indicate what your husband owned solely or jointly with you.  To the extent that it is part of the probate estate, maybe things can be assigned to you as part of your yearly allowance.  Any assets left would then become available to creditors.  However, creditors have to be paid in order of priority, starting with expenses of estate administration and your commission, then moving on to funeral expenses, medical expenses incurred in the year before death, taxes and so on.  Credit cards are last in priority.  If the estate runs out of money before credit cards then credit card companies get zero.
Why does your husband's name have to be removed from the title at all?  Why do you have to refinance?
What do you mean that the current deed is not vested?  I am not familiar with this concept.  In some states (like NC), heirs to a home cannot sell the home in the 2-year period following death unless the personal representative for the estate is made party to the agreement to sell.  Is that what you are referring to?
Again, I don't see why the home is affected by probate if this is a non-probate asset.  So something is not right here.
And not probating an estate does not preclude creditors from acting.  If no estate is probated, any creditor of a decedent can apply for probate.  While this is unlikely it can happen if there are assets.  So I don't know what you think you are accomplishing here.  Probate will actually provide a shorter period to cut off any claims of creditors if they are given proper notice and do not timely file their claims so I cannot see why you would want to avoid probate.
You need to contact a probate attorney who practices in the county where the estate will be probated and pay for a consult.  The attorney will need to review the deed to the property to see how it is titled and will need to know what other assets there are, what debts exist and the approximate values.  It may be that there will be be few assets available for creditor's claims.

Q: Husband died without a will.