My personal will states that my possessions, money, and property are to be given equally to my son and my wife upon my death.

However, I was told that my house is an exception and still has to go to probate despite the language of the will. In other words, the house is handled separately from all my money and other physical property.

I can find no evidence to support this contention.

Is it true that my house is handled differently from my other property when I die?

Possible relevant facts:

  • We live in the USA.
  • We are legally married.
  • My name is the only name on the deed.
  • We both live in the same house.
  • My wife and I pay the mortgage jointly.
  • This is our sole and primary residence.
  • Our son is a legal adult (18+).
  • 4
    I think you need to specify which state. Estate laws are state dependent.
    – user71659
    Jan 18, 2019 at 23:51
  • 1
    You realise that you may be putting your wife in an extremly awkward position on your death? I have known sons who were evil bastards and would do what they can to get your wife removed from the house and sell up.
    – gnasher729
    Jan 19, 2019 at 12:03
  • @gnasher729 That's a good point even if I can't imagine it'd be something he'd do. I can, however, see "outisde influencers" manipulating him, so it's a valid concern. Thank you for bringing it up. Jan 21, 2019 at 16:30

1 Answer 1


The way it has been explained to me by estate planning attorneys is that wills in general don't keep anything from going through probate. Your will gives instructions to the probate court for how you want your assets directed. To avoid probate requires things such as a trust, passing property by contract, or where possible, naming beneficiaries on accounts ( for example IRAs and 401ks). I believe it is possible in some states to pass a house outside of probate by leaving a signed quit claim dead, but I've been told there are various problems with this strategy. I don't remember the whole list of potential problems but one of them was issues with title insurance.

Oh and even if you directed in your will to give your house and assets to someone other than your wife, there are certain rights your wife has in them. It's called elective_share and the article mentions that it varies by state.

  • The "elective share" was known as the "forced share" back when I studied probate law. The latter is much more descriptive... Jan 19, 2019 at 14:04
  • Yeah I guess the term elective is from the perspective of the survivor. They get to elect the elective share if it is higher.
    – T. M.
    Jan 19, 2019 at 21:13
  • This is helpful. I researched the quitclaim information, but it didn't seem like a good solution. We plan to sell the house in a year, and we'll both be on the new deed. I'll just watch out for busses and falling space junk until then. Jan 21, 2019 at 16:28

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