By Joe Lusk
Married couples are often presented with title documents when buying a home stating “joint tenants with rights of survivorship.” What this means is that when one spouse dies, the surviving spouse automatically takes title to the home. The recording of the deceased spouse’s death certificate will create a record of such ownership. This is in contrast to title as “tenants in common,” in which title is retained in the deceased spouse’s estate.
Here is why the distinction between the two types of ownership is important: even if the surviving spouse is named as the decedent’s sole heir, the surviving spouse will need to probate the decedent’s estate to transfer title of the home. Probate can be quite costly when compared to the simple act of recording a death certificate.
In Colorado, the default for joint ownership is tenancy in common. This means that if the type of ownership is not stated in a real property deed, title will be as tenants in common by default. It is therefore important to make a determination as to the preferred form of joint ownership for any property (real or personal) in which more than one person takes title, and to make sure the title document (such as the deed) includes the appropriate language.
In my law practice, I often find that these and other title issues arise in nontraditional real estate transactions, such as tax sales or informal “deals” where no title company is used for closing. It is best to consult with an attorney prior to finalizing such transactions to ensure the appropriate deed language is used.
Joe Lusk is a lawyer with Boatright, Ripp & Lusk, LLC in Wheat Ridge. He can be reached at 303-423-7131.