Question: My husband died with our house in his name only. Can I get the home put in my name?
We were married for 30 years. He did not have a Will or Trust.
Loraine’s Answer: I’m going to assume that your principal residence is in Georgia and Georgia law is likely what applies. If not, this answer may not be correct.
If your husband owned your home in his individual name, the house should have become part of his probate estate at his death. If he died with no Will or other estate planning in place, then his probate estate most likely must be dealt with either with a Petition for Letters of Administration, a Petition for No Administration Necessary, a Petition for Year’s Support, or some combination of those.
Under a Petition for Letters of Administration, the heirs (which include you, as the spouse, but also include any children who your husband may have had or adopted, and, if any of your husband’s children died before him, could include those children’s own children) will receive the assets that are left in the probate estate after all debts, administrative expenses, and taxes have been paid out of the estate assets. As a surviving spouse, you would receive a share of no less than 1/3. If you are the only heir (which would happen if your husband never had or adopted any children, for example), then you’d receive all of the remaining estate assets; if there are one or two other heirs, you and the other heirs would divide the estate equally, and if there are more than two other heirs, you would get 1/3 and the other heirs would divide the other 2/3 equally between them. An Administrator would be appointed to handle the estate, including publishing a Notice to Debtors and Creditors, filing any needed reports and inventories with the probate court (if those are not waived), and transferring or selling estate assets as needed. If all of the heirs agree on an Administrator (which could be you or another party), then they can also simplify the administration process by requesting the waiver of any requirements that the Administrator post a bond or file an inventory and periodic reports with the probate court and also requesting the “grant of certain powers,” which can allow the administrator to take a lot of steps to deal with the estate without first having to seek court permission. If the heirs can’t all agree on an Administrator, then the waiver and grant of certain powers will not be available and the administration of the estate will be more difficult.
Under a Petition for No Administration Necessary, you and the other heirs (and any creditors who need to be paid) would agree to the division of the estate and state to the court that there really is no need for an administration. This option may not be a good one if there are creditors (because all parties in interest, including creditors, have to agree to the Petition for No Administration Necessary), if any heir disagrees with you about how the property should be divided, or if any heir is a minor or otherwise unable to act on his or her own behalf. If granted, the Petition for No Administration Necessary would effectively allow the probate court to transfer the property to the heirs as spelled out in the petition.
In a Petition for Year’s Support, you, as the surviving spouse, and any minor children (if there are any surviving children who are under 18) could claim your right to receive assets from the estate BEFORE any creditors get paid. Under Georgia law, a surviving spouse or minor child can receive an amount of assets from the probate estate before creditors and expenses are paid; the amount is supposed to be that amount needed to support the spouse and minor children for a year after the death. However, because of the way the law is written, in some cases it can allow a claiming spouse or child to claim the entire probate estate, even if that means some or all of the creditors remain unpaid. And, if a principal residence (or sometimes, another parcel of real estate) is part of the award of year’s support, the receiving person can even avoid property taxes for one year on that property. The year’s support claim must be made within no more than two years of the decedent’s death, so if you’ve waited too long it may no longer be an option. A granted Petition for Year’s Support, like a Petition for No Administration Necessary, actually carries out the transfer of real estate to the receiving petitioner.
It may be necessary to do both an administration AND a year’s support petition, but it may be possible to file only one kind of petition. Get a consultation with an experienced probate attorney as soon as you can. To help you figure out what may be the best option available to you, you will need to provide the attorney with a lot more information than you can possibly provide here about the family, the assets, and any creditors. But in a consultation, the attorney should be able to help you decide how best to proceed and then help you prepare and file the appropriate petition or petitions.
Key Estate Planning Takeaway: When a spouse who owned a home in his or her individual name dies, the house becomes part of that spouse’s probate estate. If that spouse died without a Will, then the surviving spouse and any other heirs will need to figure out how best to deal with the probate estate in order to receive the estate assets, but there are options. The options generally include filing a Petition for Letters of Administration and administering the estate, filing a Petition for Year’s Support that can result in some or all of the probate estate assets being awarded to the surviving spouse and any surviving minor children, and filing a Petition for No Administration Necessary that can result in the transfer of estate assets to the heirs without a full estate administration process. An experienced probate attorney can help the family figure out the best course of action.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
