Advice Needed For Heirs Of Intestate Decedent ???
Q: I am not a family member nor am I personally involved in this situation. However,I would like an objective opinion(s) on how 4 adult children of a woman who died intestate should proceed. The decedent owned a house with an outstanding mortgage of $90k. Title to the property is held by decedent and one daughter, as joint tenants. In addition to the real property, there is personal property valued at perhaps $20k. The property and family are in California. The daughter who has acquired the property wants each sibling to receive their fair share. This daughter may want to keep the property, but wants to buy out the other three siblings. Here are the questions: 1.How should she go about this? 2.Specifically, what is the best way to determine what everyone's fair share should be? 2.Should this family consult a probate attorney despite the fact that the mother died intestate? 3.How are these matters best handled with a minimum amount of hassle and expense?
A: If you mean "joint tenants with right of survivorship", the house automatically became the sole property of the surviving joint tenant (the daughter whose name was on it) upon death of the other joint tenant (the mother). It is not and never became part of the mother's after-death intestate estate. If that is the case, and unless there is e.g. a written contract _she_ agreed to, specifically providing that she owes the other siblings their "fair share" of the value of that property, she has no _legal_ obligation to share it with them, although moral and family obligations may spell out a different result. Why was that daughter, and not any of the other children, listed as a joint tenant on the house in the 1st place? Did the family do that to try to _avoid_ probate? Did the mother _want_ the daughter #1 to get the whole house after her death? There are lots of other unanswered questions. Such as, who was the obligee on the mortgage? Presumably the lender would not have permitted the daughter to be added as a joint owner unless she also agreed to be bound as a debtor (assuming, of course, that her name was added to the house deed sometime after the mother bought it and took out the mortgage). The daughter who has acquired the property wants each sibling to receive their fair share. This daughter may want to keep the property, but wants to buy out the other three siblings. Here are the questions: Good, at least you recognize that daughter #1 is now the sole legal owner of the house. It is not part of the mother's estate and does not pass through probate even if she had a will, or even if an intestate estate is opened to dispose of the other property mother owned at her death without a will. 1.How should she go about this? She doesn't have to "buy them out". Based only on the information you posted, they don't own a share of it (unless you're leaving something out). If she wants to give them a gift from her own share of the property, she is of course free to do so. But there may be tax consequences to such a gift, for both parties. Best to consult a tax lawyer and/or accountant on that point. 2.Specifically, what is the best way to determine what everyone's fair share should be? That is totally up to the giver of the gift, if it is a gift. If there was something left out here, state law would determine who the legal heirs are, and what the intestate shares of each of the heirs should be. A will lets the testator (decedent) specify a different distribution than would be imposed by law, but without a will, there is no other option than to follow what the law presumes most people would have wanted. 2.Should this family consult a probate attorney despite the fact that the mother died intestate? To answer just that limited question, YES they should, if only to see whether there is anything left out from your scenario that would be important, and to help them file for probate if there are some other assets of the estate that can only be passed through probate. Usually, motor vehicles, stocks, and of course real estate owned by the _estate_ (which does _not_ include the house you mentioned, because it never belonged to the decedent's estate) can only be transferred if someone gets appointed the Personal Representative of the Estate, and opens a probate matter in the appropriate court or state agency that handles those matters. If everyone in the family is happy, and if there is no property in the estate that has to pass through probate, you can (and lots of families do) never bother to open a probate matter. But there are all kinds of glitches that could arise that could turn that course of action into a nightmare, and it's impossible to predict them all from your brief post. If you consult a probate lawyer, pay him/her a reasonable fee for the time spent meeting with you (find out in advance what the rate is), and if _he_ tells you it's not necessary to open probate, then you all will sleep better. Otherwise, follow his advice on what to do.
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