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Transfer of Deed after Death

Discussion in 'Other Ownership, Use & Privacy Issues' started by KDPoolguy, Jun 22, 2017.

  1. KDPoolguy

    KDPoolguy Law Topic Starter New Member

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    This particular situation is in New York. My mother-in-law passed away in 2014, and all modest assets (bank accounts, IRA) were evenly distributed to the children; my wife and her brother, leaving only the house where stepfather currently lives.
    There is a will, children are named executors and stepfather is not on deed to the house. The deed is only other mother-in-laws name. The will clearly states that stepfather gets only a fixed dollar amount of $15k upon sale of home and the remainder gets split between 2 children.
    The executors (children) now want to sell house and are not sure what is the way to go. House is all that remains to deal with. We are told on one hand that probate is necessary, while others say a heir transfer of deed to the children, then subsequent sale of home is all that's required. If probate is necessary, we're now hearing that regardless of what's in the will, the stepfather is entitled to 1/3 of the house-regardless of wishes stated in the will. At this time it's debatable if stepfather will fight for 1/3.
    If this went through a probate court, would a judge review the validity of the will and generally side with the wishes of the will itself?

    Thanks for your input.


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  2. army judge

    army judge Super Moderator

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    Did the deceased own the house BEFORE she married her husband?

    What is your estimate of the home's value, what might someone offer to buy it?

    Was the deceased legally married to your "FIL"?

    If they were LEGALLY married, in what year did that occur?




    A adult, often a surviving spouse or an adult child, is appointed by the court if there is no Will, or the executor is nominated in the deceased's Will.

    The executor has the legal authority to gather and value the assets owned by the estate, to pay bills, taxes, and distribute the assets to the heirs or beneficiaries.

    Probate prevents fraud after someone dies.

    It freezes the estate allowing a judge to determine the Will is valid, all interested parties are notified, all real estate identified, appraised, creditors paid, and all taxes, too.
    Finally the court issues an Order distributing the property and the estate is closed.

    This is a link to see if the estate in question meets the "small estate" test, allowing your family to file an abbreviated form of probate:
    ...
    ...
    Small Estate Affidavit - DIY Forms | NY CourtHelp
    ...
    ...

    If small estate qualifies in your case, things could be easier for you.
     
  3. KDPoolguy

    KDPoolguy Law Topic Starter New Member

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    KDPoolguy said: ↑
    -New York State-

    Thank you, SEE RESPONSES BELOW:

    There is a will, children are named executors and stepfather is not on deed to the house.
    ------------
    Did the deceased own the house BEFORE she married her husband?
    *YES, she was a widow & owned the home with her former husband.

    What is your estimate of the home's value, what might someone offer to buy it?
    *The home has been recently appraised at $630,000. Likely a sales range of $575-650k. There is presently a $90k mortgage loan.

    Was the deceased legally married to your "FIL"?
    *Yes, legally married.

    If they were LEGALLY married, in what year did that occur?
    *1992



    KDPoolguy said: ↑
    We are told on one hand that probate is necessary, while others say a heir transfer of deed to the children, then subsequent sale of home is all that's required. If probate is necessary, we're now hearing that regardless of what's in the will, the stepfather is entitled to 1/3 of the house-regardless of wishes stated in the will. At this time it's debatable if stepfather will fight for 1/3.
    If this went through a probate court, would a judge review the validity of the will and generally side with the wishes of the will itself?

    Click to expand...

    A adult, often a surviving spouse or an adult child, is appointed by the court if there is no Will, or the executor is nominated in the deceased's Will.

    The executor has the legal authority to gather and value the assets owned by the estate, to pay bills, taxes, and distribute the assets to the heirs or beneficiaries.

    Probate prevents fraud



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  4. army judge

    army judge Super Moderator

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    The home's value exceeds the small estate limit.

    The only way to get this done is through probate.

    I suspect the FIL will be reluctant to leave, without some legal encouragement, as in court orders.

    Plus, if he leaves next week, the mortgage will need to be kept current.

    On top of the FIL, there is a lien holder.

    The executor might be better off seeking legal advice from a lawyer in your county.

    Sorry mate, this seems not that easy or simple.
     
  5. zddoodah

    zddoodah Well-Known Member

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    Were the two of them named as beneficiaries on these accounts? If not, why were they only distributed to the two children and not also to the surviving spouse?

    You mean nominated, not named. Were they actually appointed by the surrogate's court to serve as co-executors?

    Told by whom? Who are these "others"?

    Hearing from whom?

    I'm not sure what you mean by "review the validity of the will," but part of the probate process is obviously to determine if a valid will exists. Likewise, if a valid will exists, its provisions typically govern the disposition of the estate. However, two things are relevant. First, the three year delay in probating the estate (something that should have been started within a couple months after death) may cause issues. Second, one cannot simply cut one's spouse of one's estate. If the deceased does not leave the surviving spouse at least a certain percentage of the estate, the surviving spouse can "elect against the will" and receive what's called an elective share. Whether the $15k you mentioned is greater or less than the elective share under New York law is something you can ascertain by reading some of these links.

    Your wife and brother-in-law would be well-advised to consult with a local probate attorney.
     

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