Question: My mother and her husband were co-owners of a home, and they both have passed away. The house still shows 50/50 ownership.
My mother wrote a Will that says, “(a) Any interest I may own at the time of my death in our marital residence and in all land adjoining the same, I give and devise to my spouse, if my spouse survives me, subject to any indebtedness secured thereby. If my spouse fails to survive me, then the same shall be sold in a commercially reasonable manner within a reasonable time following my death, and the proceeds are to be divided among my children and stepchildren, in equal shares, per stirpes.”
However, the Will was never completed, and seven years have passed. So now what legally happens to the house and who owns it?
Loraine’s Answer: The answer to your question depends on three factors:
- The status of the Will you describe in your post.
- How exactly the house was co-owned.
- The order in which your mother and her husband died, and whose estate or estates currently own interests in the house now.
Status of the Will
If the Will was never completed (I assume you mean that it was never signed by your mom), then it can be ignored because it’s not valid. If your mother had a valid Will made before that one and didn’t revoke it, then that Will would control. If she never had any valid Will, state law will control her probate estate. Another question may actually need to be whether her spouse had a valid Will, and if so, what her spouse’s Will says.
Terms of Co-Ownership
If the most recently executed and filed deed for the property that listed both owners said that they owned it as joint tenants (or as joint tenants with rights of survivorship, or with a right of survivorship, or some other, similar language that makes clear that the property was intended to be owned subject to rights of survivorship) then, if the other owner (your mom’s spouse) died before your mom, your mom probably owned the entire house when she died. If the deed created a joint tenancy with rights of survivorship and the other owner survived your mom, however, then that owner probably owned the entire house when they died. However, if the deed does not clearly say that a right of survivorship applied to the house, then your mom’s estate likely owns half of the house and the other owner’s estate likely owns the other half (this all assumes that no other owners existed and that the deed didn’t say your mom and the other owner owned something other than half each).
Current Ownership Interests in the House
In addition to being able to figure out what interest in the house your mom owned at her death, we need to know whether mom’s interest in the house even became part of her estate at her death. If she and her spouse did not own the house subject to a right of survivorship, so that her interest in the house did become part of her estate at her death, then we need to know what her Will said was supposed to happen at her death, if her spouse survived her, and if she had a valid Will; if she did not have a valid Will, we need to know who her heirs were other than the husband. If her interest in the house became part of her estate at her death, then whatever is supposed to happen to her net probate estate assets is still what should happen to her interest in the house, even if the probate and administration process wasn’t fully carried out after her death. If any interest in the house became part of her husband’s estate at his death, then we also need to know whether the husband has a valid Will or not, and if he doesn’t, we need to know who his heirs were at his death.
Once you figure out which estates own interests in the property, you can figure out whether each of those people has a valid Will and if so, what the Wills say, and whether state law applies to either or both estates. In turn, that will tell you who gets the house.
Here are a couple of examples:
- Mom and spouse own the house as joint tenants; mom survives spouse; mom becomes 100% owner of property; mom never completed any Will so that state law applies; mom had not remarried before her own death; all of mom’s children survive her= Mom’s children inherit her probate estate, including 100% of the house, after her debts, expenses, and taxes are paid from the estate, with each child receiving an equal share.
- Mom and spouse own the house 50/50, but as tenants in common because the deed does not say joint tenants or otherwise indicate that a right of survivorship was created with regard to the property; mom dies first with no valid Will; spouse and 3 kids from mom’s prior marriage survive mom; spouse never addresses mom’s estate; spouse ends up with 83.3% of house (owned 50% already and should have received 1/3 of mom’s 50% of house from mom’s estate at mom’s death under intestacy laws), mom’s 3 kids each get a share of the other 2/3 of mom’s 50% of house; spouse dies without valid Will; spouse’s 2 kids from prior marriage get spouse’s 83.3% and split it 50/50 between them.
To summarize: a LOT depends on how the house was owned when each owner died, the order in which death occurred, and whether any owner had a valid Will. Without that information, you can’t tell who gets the house. You may want to hire an attorney to help you work your way through all the relevant information.
Key Estate Planning Takeaways: There are a lot of factors that determine what happens to co-owned property at the death of each co-owner, including factors such as: How the property was owned, when each owner died, whether any owner had a valid Will and what the Will said, and, if an owner did not have a valid Will, who that owner’s heirs are.
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.
