How can I keep my house without a will

Michael Shaw

New Member
Jurisdiction
Utah
My mother helped my wife and I purchase a house under her name. We've been living in it without her for over 5 years. She passed and never put it in writing that the house will be ours. I have messages from her stating "I be at your house later" and others similar. I also have the realtor we used who is her friend that is willing to testify that she said the purpose of the house was for my wife and I to have a home and it will be ours, etc.

I have 3 brothers and the one is stating that we have to split it 4 ways and sell it. He believes that the 3 of them will be taxed if the entire house goes to me, claiming inheritance tax. I have shown him several sites that say UT doesn't have an inherentance tax and it's not worth enough to be taxed federally. Basically blowing his reason as to why he should get a share of my house out of the water. He then stated there will be a gift tax.

As far as I know, correct me if I'm wrong, when the estate goes into probate, we can agree to divide it up anyway we want, 4 ways. We are not required to split 4 ways then readjust how it is split. This would avoid any gift tax.

So... Do I have enough or a way I can prove the house is mine according to my mother's wishes? Is my assumption of how the probate works accurate and we won't have inheritance or gift tax to worry about?
 
I have 3 brothers and the one is stating that we have to split it 4 ways and sell it.


Your brother is correct, IF your mother died and left no will.

If mother died INTESTATE, UT state law determines how her estate must be settled.

A person who dies without leaving a will is considered to have died "intestate." Under Utah law, what happens to that person's estate is dictated by sections of the Utah probate code governing intestate succession (Utah Code Ann. 75-2-102 et seq.).

Most often, the "heirs" who are likely to inherit under intestate succession will be the person's spouse or children. The spouse has priority.

However, if there is no living spouse, then the estate passes to the children in EQUAL shares.

If there are THREE children, each child would take 1/3 of the estate.

If there is real estate, the property can be partitioned (sold by the court) and proceeds distributed equally among the siblings.

It is better to agree to sell the property than have the court do it, because the lawyer overseeing the sale and the court will take a cut of the proceeds and leave the remainder to the heirs.

If no takers (heirs) exist, then under Utah Code Ann. 75-2-105, the intestate estate goes to the State for the benefit of the state school fund.




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Do I have enough or a way I can prove the house is mine according to my mother's wishes?


No, the home belongs to your mother's estate, and must be probated before anyone can own it outright or the property can be sold.

Is my assumption of how the probate works accurate and we won't have inheritance or gift tax to worry about?

Tax advice is unique to each person.

If you wish specific tax guidance, consult a tax attorney or licensed CPA.

Do NOT take tax advice from unlicensed people, especially internet strangers.
 
So the info we got from one lawyer we spoke to stated that we send it into probate and decide an executor of estate. From there we list all assets and can write up an agreement about who gets what. For example, the house to this person this money to them and this money to them. Then we file that with the court to finalize. If I'm understanding what you are say, then that's not the issue. The state will split everything 4 ways no matter what we all agree on, then we have to "gift" it to each other or buy each other out?
 
So the info we got from one lawyer we spoke to stated that send it into probate and decide an executor of estate.


Utah law requires the estate to be probated because mother owned real estate.


From there we list all assets and can write up an agreement about who gets what.

Anyone of the heirs can request to be appointed to administer the distribution of the estate's assets and payment of its debts.


IE house to this person this money to them and this money to them. Then we file that with the court to finalize. If I'm understanding what you are say, then that's not the issue. The state will split everything 4 ways no matter what we all agree on, then we have to "gift" it to each other or buy each other out?

One sibling wants the house sold.

That is all it takes to queer or disrupt any plans you might have.

If one says sell, you must sell the home and divide the proceeds by four.

The other stuff (personal property) can be negotiated as to which son receives any particular item(s).

All of her debts must be paid before the heirs take one dollar.
 
If all of us agree that I receive the house and they split the money equally, would the courts allow that without having to split the house 4 ways first? Basically, the house go from the estate directly to me instead of everyone and then the 3 of them selling their 1/4 of the house to me.

Also, do I have enough information to show the courts that the house was intended for me according to my mother's wishes or is that going to be impossible without a will?
 
If all of us agree that I receive the house and they split the money equally, would the courts allow that without having to split the house 4 ways first? Basically, the house go from the estate directly to me instead of everyone and then the 3 of them selling their 1/4 of the house to me.

If you want the house, you can BUY the house when it is placed on the auction block.

The law is very clear.

I suggest you consult with a Utah licensed real estate or estate law attorney for better, more accurate guidance.

If you short circuit the process, you'll regret it.

Also, do I have enough information to show the courts that the house was intended for me according to my mother's wishes or is that going to be impossible without a will?

Your mother may have told you many things, alas, she failed to put her wishes into a will.

She died intestate and her estate must now be probated.

That is Utah law, mate.
 
If all of us agree that I receive the house and they split the money equally, would the courts allow that without having to split the house 4 ways first? Basically, the house go from the estate directly to me instead of everyone and then the 3 of them selling their 1/4 of the house to me.

If there is no will and the 4 of you are the only ones to inherit from the estate under intestacy then you can pretty much divide up the estate any way you want so long as all 4 of you agree. There are various ways to do it, and which method you use depends on the particular circumstances of the estate in question. Bear in mind that how you do it may have tax consequences.

One way to do it that works in a number of states is simply to have the other three do a qualified disclaimer of their interest in the house. The result of the disclaimer is that their interest in the house then passes as it would if they had died before your mother did. If the effect of that is that their interests pass to you, then this is a great solution because the disclaimer avoids possible gift tax consequences that arise in other methods of transferring their interests to you. This only works, though, if the disclaimers are done within nine months of the decedent's death.

If the estate has enough other assets so that the value of the home is 25% or less of the total value of the estate, then the executor is typically free to give you the house as part of your 25% and then the other three get their share of the estate from other assets of the estate.

It may be a good idea to have a probate lawyer and a tax lawyer look over the circumstances you have and give you recommendations on what the options are and what the benefits and drawbacks of each are.


Also, do I have enough information to show the courts that the house was intended for me according to my mother's wishes or is that going to be impossible without a will?

In general the law in most states is that a will is needed if the decedent wanted to distribute her estate in some way other than what the intestate succession law provides. While there is case law in some states that allow some other expression of what the decedent wanted to be used, those tend to be very exceptional circumstances. There were lots of ways your mother could have arranged so that the house would pass to you alone. If she did not use one of those methods the courts will, absent those exceptional circumstances, going to assume that she was fine with intestate succession.
 
My mother helped my wife and I purchase a house under her name. We've been living in it without her for over 5 years.

Translation: She bought a home and let you live in it with her.

Do I have enough or a way I can prove the house is mine according to my mother's wishes?

Nothing in your post suggests that you do.

You are correct that Utah has no inheritance tax. It also doesn't have an estate tax. You didn't provide information sufficient to assess whether your mother's estate will owe estate tax, but the federal estate tax threshold is very high, and most estates don't owe it.

I suggest you confer with a local probate attorney about how to handle your mother's estate. The attorney probably can refer you to a local CPA who can guide you through any applicable tax issues. Whether you can convince your siblings to allow the administrator of the estate to deed the house only to you is anyone's guess.
 
If your mother intended to buy a house and gift it to you and not allow your siblings to benefit from it, there are a number of ways she could have done that. As she didn't, the court can only assume that is not what she intended. What you believed her motive to be several years ago, and a bunch of text messages referencing the dwelling as being "yours" when that is the standard way to refer to the dwelling someone inhabits regardless of ownership isn't going to mean much. A lot can change over time. Mom might have regretted making the purchase and leaving out her other children. You could have had a falling out and she could have changed her mind. Her other investments and financial situation could have changed altering what she had intended as far as her estate and inheritance. She might only have ever really intended the house be for your use during her lifetime. The court isn't about to try and parse out which scenario is the correct one. In any case, absent a will or her having taken any of the other measures to grant you sole ownership of the home, it isn't "your" house; just mom's house she allowed you to live in.
 
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