Q&A with Loraine: My father has five children between my stepsiblings and me. How will his house be split?

Question: My father passed away in October. His wife died about eight years ago. I’m the oldest child from his first marriage, and he has four children with his wife.

The house was in his wife’s name. Now that he has died, does the house automatically go to my stepsiblings and me to sell and split equally?

Loraine’s Answer: The only way to provide a definitive answer is to know more about what happened after your stepmother’s death and what kind of estate planning your stepmother and your father had in place, if any. Here are some questions that need to be answered:

  • When your stepmother died, did she have a Will?
  • If so, did her Will leave ownership of the house to your dad?
  • If she had a Will, was the Will offered for probate?
  • Whether or not she had a Will, and whether or not it was offered for probate, did your father petition for a Year’s Support award and request the house? If so, was that petition granted?

If your stepmother and your father owned the house jointly, as joint tenants with rights of survivorship, at the time of her death, then your father would have become the sole owner of the house automatically at your stepmother’s death, and the house would now be part of his estate (assuming he didn’t make any changes to the ownership of the house after your stepmother’s death). If all of the house became part of your father’s estate at his death, then his Will, if he has one, or state intestacy laws, if he does not have a Will, will control what happens to the house. However, since you said the house was in your stepmother’s name at her death, I assume that they didn’t own the house as joint tenants with rights of survivorship at that time. If your father owned less than all of the house, then his Will or state intestacy law can only control what happens to his portion of it.

If your stepmother was the sole owner of the house and she owned it directly in her name (not through any kind of trust), then the house would have become part of her probate estate at her death. In that case, her Will, if she had one, or state intestacy laws, if she did not have a Will, would potentially have controlled what happened to the house at her death. However, assuming she and your father were legally married to each other at her death, your father, as a surviving spouse, would have had the right to make a claim for a year’s support as long as he did so within 2 years after her death. A year’s support claim can override a Will and state intestacy law.

If your father made a successful year’s support claim and asked to have the entire house awarded to him, then it would have become 100% his, and he would likely have been the sole owner at his death. If your father didn’t make a year’s support claim and get an award of the entire house as part of that claim, then he would still have become the sole owner of the house if your stepmother had a Will that left the entire house to him and that Will was admitted to probate after her death. However, if your father didn’t receive 100% of the house under a year’s support claim or your stepmother’s Will, then he may have owned less than 100% of the house at his death. For example, under state intestacy law in Georgia, a deceased person’s heirs include that person’s surviving spouse and their surviving legal children, if all of that person’s children survive her. A stepchild does not count as a legal child, however- only children that were born to or legally adopted by the deceased person count as that person’s children. So, your father and your stepsiblings would have counted as your stepmother’s heirs.

The heirs get the net probate estate (everything that is left after debts, expenses, taxes, and year’s support claims have been paid). A surviving spouse, as an heir, is effectively given the same share of the net estate as a child gets (i.e., if there is a spouse and 2 children, each gets 1/3 of the net estate), except that, if there are more than 2 children, the spouse gets 1/3 of the net estate and the children divide the remaining 2/3 between them. This means that your father might have received only 1/3 of the house after your stepmother’s death if she died without a Will.

If your stepmother had a Will and she was the sole owner of the house, she might also have left your father no direct interest in the house, or only a temporary interest in the house. For example, her Will could have placed the house in a trust for your father’s benefit, with the entire remaining trust property to pass to her own children at his death. Or, her Will could have left your father only a life estate in the house, and left the remainder interest to her children. And, under either of these situations, she also could have decided to benefit you in addition to (or even instead of) her own children. Without knowing whether she had a Will and, if so, what the Will said, you can’t know.

As you can see, it is impossible to tell you how the house must be divided without a lot more information. You or someone else needs to get appointed to represent your father’s estate as an Administrator (if he had no Will) or Executor (if he had a Will). That representative then needs to figure out what happened with regard to the house at your stepmother’s death and whether her estate appears to have been properly administered. That will tell you how the house is currently held and what needs to happen to it.

Key Estate Planning Takeaway: In any situation where real estate was owned by a deceased person, it’s important to gather as much information as possible about the deceased person’s estate planning and how the real estate was owned at that person’s death and at the death of any already-deceased prior owners, especially when dealing with blended families where there are both legal children and stepchildren. This information is critical. An experienced probate attorney can help you figure out the right questions to ask and, based on the answers, can give you a better idea about what rights, if any, you might have.

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo that are based on questions originally posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.

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