Q&A with Loraine: If my father passed away without a Will or trust, do my sister and I have a legal right to part of his house?

Question: My father passed away unexpectedly a few months ago before he had time to create a Will or trust, and no one was appointed as power of attorney.

He remarried a few years ago. His wife would like to sell their house soon and use the proceeds to move to another home. She said that I have no right to the house or the money that would come from its sale because my father put a special clause in the mortgage stating that it was to be transferred into her name if he passed.

I am not sure if what she is saying is legal or accurate. Are my sister and I considered equal heirs with her to his estate?

Loraine’s Answer: It’s true that under state intestacy laws, which apply when someone dies with no Will, the person’s surviving spouse and children are all joint heirs to the net probate estate. However, if an asset is owned jointly by the deceased person and another person as joint tenants with rights of survivorship, then that asset automatically passes to the surviving owner and does not become part of the probate estate. If a beneficiary designation applies to an asset, then the beneficiary designation controls that asset. Neither state intestacy laws nor a Will affect assets that pass under a right of survivorship or a beneficiary designation.

The answer to your question depends on whether your stepmother and your father owned the residence jointly or whether he was the sole owner (I am assuming she was not the sole owner, based on your statement of her comments). If they owned the residence jointly, the answer to your question also depends on whether they owned it as joint tenants with rights of survivorship or as tenants in common (Please note: there is no such thing as “joint tenants in common”- this is a common error that mashes the names for two different forms of joint ownership together). Either way, the deed to the house, not the mortgage paperwork, is what contains your answer. For a jointly owned property to be held as joint tenants with rights of survivorship in Georgia, the deed to the home must clearly state not only that both of them are owners, but that they own it as joint tenants. This can be done in different ways. However, if the deed only lists both of them as owners and does not also contain language that indicates that they own the property as joint tenants with rights of survivorship, then they own it as tenants in common. While it is very common for married couples to own property as joint tenants with rights of survivorship, you must check the deed to make sure.

You can get a copy of the deed to the house from the Superior Court of the county where the house is located. You would need to look for the most recently filed Warranty Deed, Limited Warranty Deed, or Quit Claim Deed. If the deed has the right language to create a right of survivorship, your father’s wife is now the sole owner of the residence, and you and your sister do not have any rights to it.

However, if the deed does not contain the right language, or if your father was actually the sole owner, then your father’s interest in the house became part of his probate estate when he died, and you and your sister may be entitled to shares in the house as two of his heirs. His spouse may be able to take the entire property through a claim for a year’s support, but you and your sister, as heirs, would still have rights that you could pursue and try to protect.

You should contact an attorney for specific advice on how to check ownership of the house and pursue any rights you might have.

Key Estate Planning Takeaway: If a person dies without a Will and they own their home jointly with another person, what happens to the person’s interest in the house depends, at least in part, on the language contained in the deed. If the deed contains language indicating that the owners hold the property as joint tenants with rights of survivorship, the house will pass to the surviving owner and not become part of the deceased owner’s probate estate. However, if the deed does not contain the language necessary to create a joint tenancy with the right of survivorship, then the deceased owner’s interest in the house becomes part of that owner’s probate estate, where it will be controlled by the applicable state intestacy laws.

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to common questions. A key takeaway from each exchange highlights an important facet of estate planning.

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