When a spouse dies, does the survivor need a new deed to their house?

Attorney Tom Olsen: When a married couple owns their home together, which so many married couples do and one of them passes away, do they have to get a new deed? That's usually the way it is expressed to us. As far as a question, the lady calls me and says, "Tom, my husband has passed away. I need a new deed to my home." I told her, "Listen, no, you don't need a new deed." We keep that same deed. We go back to the original deed that's got both their names on it identified as a husband and wife and so that when the husband passes away, we don't do a new deed.

All we do is record the husband's death certificate in the public records and it is that old deed together with his death certificate that will tell the world that she's now the sole owner of this piece of property she can do with it whenever she pleases.

Attorney Chris Merrill: A reason to do a new deed was because the survivor now wants to make sure that there will be no probate when the survivor passes as well. That would be your reason to update the deed, to make sure, for example, if it's going to your children, that now in order to avoid probate, there must be a new deed.

Attorney Tom Olsen: That's right, because they owned it as a married couple, when one of them passes away, no probate required to put it into the survivor's sole name. Now, when the wife passes away, there will be a probate required on that home unless we take steps to avoid probate. Generally, to avoid probate on real estate these days, we're doing what's called a Ladybird deed. It's a deed that we would prepare and she would sign it.

It would state that as long as she's alive, it is her home to do with as she pleases. No restrictions whatsoever, but upon her death, the home would automatically go to her kids. No headaches, no hassles, no probate. Yes, we don't need a new deed to put it into her name, but we do do a new deed, a Ladybird deed to avoid probate on the home when she passes away.

Attorney Chris Merrill: Exactly.