When someone passes away, everything they own needs to find a new home, including their home itself. Unlike furniture, pots and pans, and other items in a house, the house itself often has extra ownership documents and rules that dictate how these things get passed on, even if there is no will.
A house may be jointly owned – e.g., two spouses might own it together. If this happens, then the house goes to the other joint owners, all without passing through a will. The deed might also have rules passing it to someone else. There may also be a lien from the bank that allows them to try to take possession or sell the house. If all of that passes by without deciding ownership, and there is no will, then Nevada’s intestacy statute says who gets it.
For help with wills and probate issues, call the Henderson, NV estate planning lawyers at Flake & Flake today at (702) 829-5731.
When a House Passes Through a Will
There are plenty of reasons a house might not actually pass through a will in the first place. Ultimately, someone’s house will typically only go through a will if they own it alone and have no special instructions on the deed. However, there are other situations our Nevada estate planning lawyers can warn you about during your estate planning.
If it is jointly owned – and sometimes, if there is a mortgage on it that cannot be paid off – then it will be transferred before the will is processed through probate.
What Happens if There is No Will?
If the house would go through the will, but the decedent has no will, then it passes under Nevada’s “intestacy statute.” Intestate just means “without a will” (a “testament”), and our default rules for intestate succession in Nevada can be found in NRS 134.030 and the following sections.
Generally, property passes to your closest relatives first: your spouse and your children/descendants. If they have no children or spouse, it goes up to their parents. If they have no parents, it goes back down the family line to their siblings.
If there are no closer family members, then it divides equally among whoever is the next closest family member.
How is Property Divided Without a Will?
When property passes to multiple people under our intestate succession rules, it often does so in equal shares.
One big exception is that with a spouse and children: the spouse gets 1/2 of the estate, and the children evenly split the other half. This often leaves room for the spouse to get the house within their half of the estate.
Otherwise, the entire estate is divided up into equal shares. This often means the house needs to be sold off, or else each heir has to keep a divided interest in the house. That often makes selling it later much harder, so sale is often the best choice for the heirs.
Jointly Owned Homes
If the house is jointly owned, then there is no need to look at a will to determine who gets the property.
Non-Probate Assets
A will only covers “probate assets,” which are the items that need to go through the probate process to decide ownership and distribute them under the will. Whether there is a will or not, a jointly owned home does not pass through probate at all, because it has other rules in place dictating who gets it.
Joint Owner Gets the House
When two (or more) people jointly own a house, and one of them passes, the surviving owners get the house. This typically only works with “joint” ownership, where there is a so-called “right of survivorship.”
If there is no “joint” ownership, or no right of survivorship, then the decedent’s share of the ownership would pass through their will instead of going to the other owners.
Joint Ownership Requirements
To create joint ownership, you usually have to
- Purchase the property together at the same time
- Share equal interest in the house
- Intend to have a right of survivorship and
- Own the same title to the property.
This is most common when a married couple buys a house together. Even so, there may be checkboxes to tick when buying property to make sure you have “joint” ownership.
Ownership usually cannot be changed to joint later unless you sell and re-take title to the property so you all take ownership at the same time.
How it Works
In practice, this means that when one spouse dies, the other takes over full ownership of the house. Non-married people can also own a house jointly, which has the same effect when one dies: the other takes over full ownership.
How Does a Will Change This?
Nothing goes through probate, whether there is a will or not. That means a will has no effect.
Deed Upon Death
Nevada also lets you use transfer on death deeds – known as a “deed upon death.”
Transfer on Death Registered on the Deed
This puts the transfer on death rule directly on the deed. To put this into effect, the owner needs to go to the local registrar of deeds and include language on the deed to say who gets the deed when they die.
Non-Probate Asset
Like joint ownership, this is a non-probate asset and does not go through a will either way. The transfer takes place immediately upon death, so the house would no longer be included in their will.
How it Works
This transfer is immediate when the owner dies. You merely need to check the deed and see what it says, and the new owner can register the deed in their name and take possession of the house.
How Does a Will Change This?
Because these instructions go on the deed itself, they take effect before anything in the will would. That means having a will or not does not change this transfer.
Liens and Mortgages
When there is a lien or mortgage on a house, it can complicate how the house is transferred when the owner dies.
If the heirs are not willing to take up the mortgage, the bank may have a claim to repossess and sell the house. The same is true if the mortgage falls into default because the heirs cannot pay the mortgage.
Selling the House
In many cases, houses are sold instead of being divided up, which can pay off the mortgage and give the proceeds to the heirs so they do not have to worry about any debts, creditors, etc. This is something the executor/personal representative can usually take care of.
Call Our Nevada Estate Planning Lawyers Today
Call the Las Vegas, NV estate planning lawyers at Flake & Flake today at (702) 829-5731 to discuss your estate planning or probate needs.
