Question: How can I sell my mother’s house in Georgia? She died in 2008 without a Will. I am the only survivor. She was widowed, and my sister and I were her only children. Neither of us had a spouse or children. My sister is now deceased. I have continued to pay property taxes on the house.
Loraine’s Answer: There are several options, one or more of which may be available to you:
- Open and administer both your mother’s estate and your sister’s estate.
- File Petitions for No Administration Necessary for each estate, if this is possible.
- Obtain an affidavit of inheritance and record it in the real estate records for the county, if possible.
Without first pursuing one of these options, you will likely not be able to sell the property, because the title is not in your sole name. To be able to sell your mother’s house, you must be able to show that you are the sole owner of the property. The options available for doing that, as well as the determination of which option may be best for you, depend on a lot of factors. You may also need to deal with your sister’s estate before you can deal with your mother’s estate, because in order to deal with your mother’s estate you may need to have someone appointed who can act on behalf of your sister’s estate.
When someone dies without a Will, the state’s intestacy laws determine what happens to that person’s assets. If someone has a valid Will, the Will controls what happens to the property. When your mother died with no Will, unmarried, and with only two children, both of whom survived her, Georgia’s intestacy law would have said that you and your sister were her only heirs. (Please note that, if your mother ever had adopted any children other than you and your sister but those children did not survive her, there may be other heirs. I am assuming that you are stating correctly that she never had or adopted any children other than you and your sister.) Under Georgia law, if you and your sister were her only heirs, your mother’s house, along with any other assets that remained in your mother’s probate estate after her debts, expenses, and taxes have been paid, should have been distributed to you and your sister in equal shares. If your mother’s estate was opened for administration but the administrator never got around to making the final distributions, then the title to the property is sitting in her estate still and that distribution will still need to happen. (Because it has been so long, you may still need to reopen her estate even if an administration was opened.) Because your sister is deceased, her share would need to be transferred to the representative of her estate and, if you need to open your mother’s estate, the representative of your sister’s estate will need to either consent or be given notice of the attempt to open the estate and a chance to object to it. For this reason, if your sister’s estate is not already open and represented by an executor or administrator, you may need to get your sister’s estate open and represented before you can deal with your mother’s estate.
A Petition for No Administration Necessary is available in Georgia where a deceased person had no Will. All interested parties, which include both the heirs and any creditors, must agree to the distribution of the estate and consent to the Petition. The Petition is filed with the appropriate probate court. Assuming there are no objections, the probate court will generally grant the Petition and, for real estate, the order granting the Petition will be recorded in the deed record. This updates the deed record to show that title to the property passed to others as stated in the order granting the Petition. Because your sister is deceased, you will need to have the representative of her estate consent on her behalf, if there is one appointed. If there is not a representative appointed for your sister’s estate, then you will need to get one appointed.
Georgia law also says that, when a person dies without a valid Will, the title to real estate owned by that person vests in (transfers to) the person’s heirs at death. The appointment of an administrator transfers the title to real estate back to the administrator of the estate. This means that, if your mother’s estate was never opened for administration and she did not have any debts at her death, you and your sister may actually hold title to her house already, even though the transfer is not reflected in the deed record. If there is no other reason that you need to open the estate, and if you have a third party who is in a position to be able to execute an affidavit of inheritance for you, then you may be able to update the deed record to show that you and your sister inherited the property at your mother’s death under the intestacy laws using that affidavit. (An affidavit of inheritance for real estate is generally done by a disinterested party who knew the deceased person, knew that she had no Will, and knew enough about the person’s family to be able to describe the heirs and state that the title would have passed to the heirs at the person’s death.) This will only show that your mother’s interest in the property passed to you and your sister, however, which will mean that your sister’s interest will be held by her estate. The representative of your sister’s estate will need to deal with the property.
As for your sister’s interest in the property: Depending on whether or not she had a Will, her interest in your mother’s house is either currently held by your sister’s estate or your sister’s heirs. When your sister later died, if she also had no Will, if she was unmarried and had no children or other descendants, and if you are really her only sibling (i.e., your mother only ever had the two children and never adopted any other children, and your sister’s father never had or adopted any children other than her and you, if he is also your father, or her, if you have a different father than your sister did), then you would have been your sister’s only heir, and you would be entitled to receive her share of the property after her debts, expenses, and taxes have been fully paid. In that case, your sister’s share of the property may already have been transferred to you, and if you can obtain an affidavit of inheritance for her estate you may be able to show that you have clear title to the property that way. If your sister had no Will and you are her only heir, you might also be able to do a Petition for No Administration Necessary for her estate. And, if there is any other reason that your sister’s estate should be administered, then you will need to have an administrator appointed, and the administration will need to eventually transfer title to you.
If your sister had any other siblings, and if any of those other siblings either survived your sister or had descendants who survived her, then you are not her only heir. If your sister has more than one heir and no Will, then all of her heirs will be entitled to shares of your sister’s share of your mother’s house, even those heirs who are not related to your mother. And, if your sister had a Will, then her share would be controlled by the terms of her Will, and she could leave her share of the house to whomever she wanted. If there are other heirs, or if your sister left her property to someone other than (or in addition to) you in a Will, then you will have to deal with those other parties before you can sell the property and get clear title to it.
An experienced probate attorney can help you sit down and figure out what steps you may need to take, and which options are available to you, along with which option you decide to take. A probate attorney can also help you with most of the other options, although if it looks like an affidavit of inheritance is your best option, a real estate attorney may also be able to help. You may also want to speak with someone at the Georgia Heirs Property Law Center. The Center has helped many people clear up complicated titles in similar situations and is a great resource. Don’t keep waiting to address the title issue, however- it will just continue to get more complicated the longer you wait.
Key Estate Planning Takeaways: If the owner of a house dies without a Will, the heir or heirs should act quickly in order to ensure that they update the deed records accordingly and can show clear title to the real estate. Doing nothing is not a good option, as title to the property becomes more complicated and more difficult to clear up each time an heir passes away. Administer the estate and have the property retitled. An experienced probate attorney can help the family figure out what steps should be taken and ensure that they are taken in a timely manner.
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 is permitted on their site. To view the original question and Loraine’s abbreviated response, click here.
