Legal Question in Wills and Trusts in Missouri
My fiance's mother just passed away. She had an extensive will made up a year ago stating that her home which was deeded in her name only was to go to her three children. She also had a beneficiary deed made and filed with the three children listed as the three beneficiaries of the home upon her death. She was married at the time of her death and had a prenup stating that her personal property, at the time of the marriage ten years ago, would remain hers alone. Her husband is moving into a retirement home, so that the home will soon be ready to sell. Do the heirs need a quitclaim deed signed by her husband on the home since it was her personal property at the time of the marriage and since there is a beneficiary deed showing her three children as the beneficiaries of the home, along with her Will stating that all of her property is to go to the three children before they can sell the home?
2 Answers from Attorneys
First, the beneficiary deed supercedes the will. Secondly, the home is REAL property, not personal, so that provision doesn't apply. Did the prenup address real property? If so, what did it say? It will certainly be cleaner if the husband will sign the quit claim deed -- has this been addressed with him? Have you conferred with a Title Company? This will be the easiest way to get an answer.
Have you conferred with the lawyer who prepared the "extensive will"? One would think he would have dealt with this concern at the time.
If the Beneficiary Deed is valid, then the usual practice would be for the beneficiaries, or one of them, to record an "Affidavit of Death" with the Recorder of Deeds office in the County where the real proprety is located. Then, if the beneficiaries want to sell the home, they would all sign off on any sales contract, the deed transferring the real property to the buyer, and any other real estate documents. Legally, there is no need for the husband to sign a quitclaim deed , since he doesn't own any interest in the real property that he can transfer, However, if the Beneficiary Deed is not valid, then the home may have been owned by the husband and wife as "tenants by the entirety" a special form of joint tenancy, and the husband would own the real property upon the wife's death. He would be the one filing an "Affidavit of Death" so that the chain of title clearly shows him to be the owner. Perhaps you should consult with an attorney in your area.
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