Question: My dad died with no will. I’m the one who took care of him. There is a mortgage on the house that I’m paying now. Can my sister make me sell the house?
Loraine’s Answer: Maybe. Your sister can’t sell the house without your consent, but you aren’t entitled to just keep the house for yourself. If your father was the sole owner of the house, it became part of his probate estate. When there isn’t a Will in place, Georgia’s intestacy laws determine how a person’s assets will be settled when they die. The estate generally needs to be administered. After the administration is complete, the remaining estate assets, if any, are distributed to the heirs. If a deceased person is survived by a surviving spouse and any biological or adopted children, then the spouse and the children will generally be the heirs.
In your case, assuming that your dad was not married at his death and that you and your sister are his only children, so that there are no other heirs, your sister would receive half of the estate, and you would receive half. The administrator of the estate may end up needing to sell the house in order to pay your father’s debts, taxes, and expenses, and, if so, then you may end up having to purchase it if you want to keep it. If you’ve been paying expenses for estate assets, like the mortgage on the house, you would normally be entitled to reimbursement for some of those payments from the estate before the remaining assets are divided up.
If you really want to keep the house, you may need to work out an arrangement in which you either buy out your sister’s share of the property or rent her share from her. Since you will likely need to refinance the mortgage, the mortgage company may approve an increased loan that would give you the cash to buy your sister out, if she’s willing to sell to you. You would not need to buy 100% of the house; you would only need to pay her for the net value of her 50%. You should consult with an experienced probate attorney as soon as possible to help determine your options for opening your father’s estate and settling the house.
Key Estate Planning Takeaway: Just paying the mortgage or other expenses for a home owned by a deceased parent does not give you rights to the home, and neither does having acted as the parent’s caregiver before the parent’s death. Instead, a deceased parent’s home, along with any other assets in the parent’s probate estate, are subject to either the parent’s Will or to the laws of intestacy.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.
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