Asked in Estate Planning and Real Estate Law for Wisconsin

Q: Unmarried, both on deed, what happens if he dies?

My partner and I own a house together and have one minor child together. He has no other children and does not have a will. If he were to die, what would happen with the house? Would I be able to take over the mortgage? Would I be responsible to pay off his car and credit cards before I could do this?

1 Lawyer Answer
Thomas B. Burton
Thomas B. Burton
  • Estate Planning Lawyer
  • Eau Claire, WI
  • Licensed in Wisconsin

A: Hello, if you are unmarried and own the house together it will depend on how the title to the home is held. This will be reflected on the deed when you purchase the property. If you are both on the title to the property, then it depends on if you hold title as "Joint Tenants with Rights of Survivorship" (JTWROS) or as "Tenants in Common" if you hold it as JTWROS this means if one joint tenant dies, the other joint tenant inherits the entire property without probate. If you hold it as tenants in common, then the share that your deceased partner held would pass to his probate estate upon his death. Your share would still be owned by you at that point. The mortgage will stay with the property, since the lender has a secured interest in the property. The second piece of this is whether the mortgage is in both of your names, or his name only. If it is only in his name, and you inherit the house, you would need to refinance and get the mortgage in your own name after his death. I suggest your partner review the deed to the home carefully and consider putting an estate plan together that dictates what he would want to happen to the house if he should pass away. There are ways he could avoid probate on the house using the title via deed as mentioned above if he wanted to pass the house to you upon death. If he wants to pass the house to his surviving child then he could look at using a trust to hold the property for the benefit of the minor child. The debts of the decedent would become debts of his estate, so any debts he owes at death, the ultimate beneficiary of the estate would need to pay those debts first before they could distribute any assets to themselves. If the estate goes through probate there is a creditor notice period that allows the creditors a statutory deadline to file their claims.

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