Will our home go to our children without probate if we die together?

Full question:

My wife and I are both on the deed to our home. If she and I died together, would our home go to our children WITHOUT going through probate, or do they need to be specifically named on the deed. We have a 'warranty deed' that states 'sold to the said GRANTEES and GRANTEES' heirs, successors, and assigns forever'.

• Category: Wills and Estates
• Date: 04/07/2025
• State: New York

Answer:

If both parents die together, the inheritance of the home by the children depends on how the property is owned. If the home is owned as joint tenants, the surviving joint tenant automatically inherits the property, and it passes outside of probate. However, if the property is held as tenants in common, each parent owns a distinct share, and the children would need to go through probate to inherit any portion not specifically transferred to them.

The warranty deed you mentioned states that the property is sold to the grantees and their heirs. This means that the heirs have a right to inherit, but it does not automatically exempt the property from probate if the children are not named on the deed or if the property is not held in joint tenancy.

In general, if a child is not named on the deed, any share of the property that the parents owned individually will typically go through probate. If the estate's value is below a certain threshold, it may qualify for a small estate administration process instead of formal probate.

When a person dies, their assets are distributed through probate. If there is a will, an executor is appointed to manage the distribution. Without a will, an administrator is appointed to follow state intestacy laws. For real property, the executor or administrator may need to execute a deed to transfer ownership to the heirs.

For specific legal advice regarding your situation, it's best to consult with an attorney familiar with estate law in your state.