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Dealing with Real Estate Disputes without a Will

December 26, 2017 in Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT

No one lives forever.  Part of planning for death should include having a Last Will and Testament prepared so that the property we leave behind goes to our loved ones in precisely the way we intend.

But many people procrastinate and do not have a Real Estate Litigation Attorney trusts draft a Will for them. But it’s often not a question of procrastination — truthfully, most of us abhor thinking about our death.

When a person dies without a Will, her property will be distributed to her heirs according to the intestacy laws of the state where the person dies. These state statutes spell out in detail the priority of the relatives in receiving the assets of the deceased. Typically, the wife has first priority and then the children. However, some states will apportion the property to the wife and the children based on a proportional percentage dissolution.  

If the deceased owned individual items of personal property (e.g., jewelry, coin collections, furniture, etc.) distribution these assets should be relatively simple.  But distributing real estate poses much more difficulty, for the simple fact that a parcel of land, or a home build on land, is not a moveable object that can readily distributed by transfer of physical custody.

Instead, ownership of real estate is established in the deed to the property recorded at the county’s recorder office. Distributing the real estate will usually require the filing of a probate case in court, and obtaining a judge’s consent to execute a new deed transferring ownership.

In some cases this judicial intervention can be avoided by pre-death planning concerning how the deed to the real estate if titled. For example, in some states, if the title to the deed is to husband and wife jointly, then immediately upon the death of one spouse, full ownership of the real estate vests immediately in the name of the surviving spouse without the need of filing a probate action in court.

What if the deceased is a widow who leaves two children, and whose only asset is a parcel of real estate, such as the family home? Obviously real estate cannot be sawed in half and divided between the children. In such as case, a probate case will have to be filed in court, and the following options are open to the probate judge:

  • Deed the property so that it is titled in the names of both children.
  • Order the sale of the property, with the cash proceeds to be divided equally between the children.

The above examples illustrate how important it is for all persons, single or married, to have a Will drafted before they die. The amount of attorney fees involved in getting a Will drafted is generally a small fraction of the attorney fees involved in litigating a complicated probate case and dealing with potentially numerous relatives of the deceased.

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