Q: I am considering selling my home. My husband passed in 2020. I am on the deed, but not the mortgage.

A: As a married couple, I assume you held the deed as "tenants by entireties." Upon his passing, you became sole owner (there was nothing for the mortgage company to "confirm," it just happened). You can sell it, any time. The mortgage remains a lien and must be paid off at closing. The net proceeds are yours.

How you use them, and the tax consequences of how you use them, is a different subject.

Many law firms, like ours, operate companion brokerages that can assist in your efforts to sell, and to downsize to something more manageable. Live your life!

A: I am sorry for your loss. Married couples can hold property a few different ways and how the title reads on the deed affects what you need to do when one person passes.

Usually (but not always) married couples own property as "tenants by the entirety" - if so, then by operation of law the surviving spouse owns the whole property and does not need to do anything else legally (besides showing the title company your husband's death certificate when you sell).

Occasionally married couples will not hold as tenants by the entirety. If for any reason the deed is titled differently, for example if you purchased before marriage and the deed does not include survivorship rights, then 1/2 of the property would need to go through probate and you'd need to open an estate for your husband and be appointed as Personal Representative.

An attorney could confirm this in under 2 minutes in most cases. While not legal advice, I hope that it helps!

A: I assume you held title as "tenants by the entireties" (TbyE) which is the default ownership of husband and wife, or as "joint tenants" (JT). In either scenario, you became the sole owner of the property by operation of law upon your husband's death.

The only other possibility is that you and your husband were titled as "tenants in common" which is unlikley, and would have to be stated that way on the deed. In that scenario you would need to probate your husband's estate in order to distribute his half interest in the house to his heirs at law, which would include you plus any children born to your husband (or if deceased childen, their issue).

But if ownership was TbyE or JT, your situation is simple: just sell the house, and at closing, all liens like mortgages against the property get paid off out of the sales proceeds by the settlement attorney before the net proceeds are distributed to you. In order for the sale to go through with a deceased owner still listed on the deed, you will need to provide the settlement attorney with an original copy of your husband's death certificate.

While neither necessary nor particularly beneficial in many cases, if you wish to clarify the fact that you are now the sole owner of the property, you can do one of two things: physically record the death certificate in the land records in connection with the property; or pay a lawyer to draft a new deed in your sole name to reflect the passing of your husband and your succession as sole owner, and record it. Both of these actions will cost you filing fees and potentially legal fees, but will provide clarity of ownership if that is important to you. For instance, if you wanted to refinance the property or take out an equity line of credit, having the deed re-recorded into your sole name would eliminate questions and additional documentation when applying for and processing the loan documents. However, based on your intention to sell the property soon, there is no need to do any of these things. Simply be prepared to provide an original death certificate when needed.

Good luck to you.