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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 11786
Experience:  Licensed Texas General Practice Attorney
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My mother passed away in March without a will. My dad is not

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My mother passed away in March without a will. My dad is not in the best of health and also does not have a will. My brother and his wife moved in with my dad to help out after my mother passed away. It was always my mothers wish that my brother got the house after my parents had passed away. When talking to my dad about his estate he is pretty much refusing to get anything taken care of legally and I want to protect my brother and his wife once my dad passes on. Intially my fater was going to have my brothers name added to the deed since there is no mortgage on the house, which I am assuming if he did this that the house would go to my brother once my father passes on. If he does not add him to the deed will the house need to be sold in order to settle my dads estate. My mother and father had 5 children and I would like to think that we would all be in agreement that my brother would get the house but things don't always work out the way that we would think. Can you give me any indication of what will happen with my fathers estate if he passes on with out a will.
Submitted: 1 year ago.
Category: Estate Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

Customer:

thank you

ScottyMacEsq :

If your father passes without a will, property that is in his estate will pass to all of his children equally. Now you may disclaim your inheritance, but everyone would have to be in agreement for him to get the house.

ScottyMacEsq :

As to debts, these are paid in priority, before anything is distributed to the heirs:

ScottyMacEsq :

First Priority:


The costs of administration.


Second Priority:


The family exemption ($3,5000)


Third Priority


The costs of the decedent's funeral and burial; and


The following items, services rendered or medicines furnished within six months immediately prior to the decedent's death:


Costs of medicines furnished to decedent,
Costs of medical or nursing services performed for him within that time
Hospital services including maintenance provided him within that time
Services provided under the medical assistance program provided within that time
Services performed for him by any of his employees within that time
Fourth Priority


The cost of a gravemarker.


Fifth Priority


Rents for the occupancy of the decedent's residence for six months immediately prior to his death.


Sixth Priority


Claims by the Commonwealth and the political subdivisions of the Commonwealth.


Seventh or Last Priority


All other claims.

ScottyMacEsq :

The way this works is that the debts in the first priority must be met before second through last, then the second must be met, then the third, and so on.

ScottyMacEsq :

Only if all of those are met and there is still property in the estate will that property be distributed.

ScottyMacEsq :

If the other assets are not enough to cover the debts, then the house could be sold.

Customer:

The cost of administration would be the probate lawyer correct?

Customer:

what is the family exemption?

ScottyMacEsq :

Yes, and court costs and any other costs incurred.

ScottyMacEsq :

$3,500.

ScottyMacEsq :

It's just an amount that would be paid out to the family before debts paid.

Customer:

If there is one of the siblings that will not agree to my brother getting the house what will happen in that case?

ScottyMacEsq :

In that situation, the house can be distributed in equal shares (if the others sign away their rights in it) to your brother and the other non-consenting sibling.

Customer:

so if the house was worth say $100,000 then he would have to pay the sibiling that does not agree $20,000 in order to keep the house?

ScottyMacEsq :

It depends. If the three consenting siblings disclaim their interest, then the house would go 1/2 to each, meaning he would have to pay $50,000 for a buyout (if the other sibling agreed to that price), otherwise it would probably be sold and the proceeds distributed. On the other hand, if the three siblings give their interests to the brother, then it would be $20,000, rather than $50,000.

Customer:

If my father passes away without a will how long does it normally take to go through the probate courts?

Customer:

And if I can convince him to get a will drawn up and he has in it that my brother gets the house is there any recourse of the other siblings to try and get any proceeds from the house.

ScottyMacEsq :

That's really hard to say. It can be as short as a month or two, but probate (in contested situations can last years).

ScottyMacEsq :

If there is a will or joint tenancy on the house with right of survivorship, the only recourse would be if they could show that your father was not competent at the time he signed the document.

ScottyMacEsq :

Otherwise, it would be valid (assuming the document was otherwise valid)

Customer:

Also if my father were to just put my brothers name on the deed does that give my brother full ownership of the house when my father passes

Customer:

As far as inheritence taxes would my brother owe anything on what the house is worth?

ScottyMacEsq :

Inheritance tax, yes.

ScottyMacEsq :

In PA there's a 4.5% tax on transfers to direct descendants and lineal heirs (children).

Customer:

If the house is contested and this does go into probate my brother and his wife are currently living in the house with my father would they still be able to live in the house while everything is being figured out?

ScottyMacEsq :

As far as your father putting him on the deed, that depends..

ScottyMacEsq :

If he was added to the deed as a "joint tenant with right of survivorship" then he would inherit the property without probate.

ScottyMacEsq :

But if as a co-tenant, then he would only have 1/2 of the ownership at the time of death, and then would have 1/5 of the other 1/2 in probate.

ScottyMacEsq :

As far as living there, they probably would be able to remain, although it's possible that the court could order that they pay rent for the 4/5 interest that they don't have.

Customer:

and how would the rent be determined?

ScottyMacEsq :

Fair market rental value of similar properties in the area.

Customer:

okay one more question. My one sister is being the problem in this whole thing and I don't want to have it become a major mess. I know she has been checking with lawyers about her rights in everything and I am afraid now that she my try and go after something before dad passes away since my mother did not have a will is she or any of the children entitled to anything? I am assuming that my dad just got everything since he was the surviving spouse

Customer:

thought of one more question if they are ordered to pay rent who is that rent paid to?

ScottyMacEsq :

Rent first: Rent is paid to each sibling, in equal parts.

ScottyMacEsq :

As for your mother's estate, without a will, if the decedent was survived by his or her spouse and had surviving children, all of whom were also the surviving spouse’s children, the surviving spouse will receive the first $30,000.00 of the estate, plus one-half of the remaining estate, if any. However, if the decedent was survived by his or her spouse and had surviving children, at least one of whom was not also the surviving spouse’s child, the surviving spouse will only receive one-half of the estate. Under these circumstances, the surviving spouse would not be entitled to the first $30,000.00. The reason for the difference in these two scenarios is that the law presumes that the surviving spouse will care and provide for children of his or her own, but does not make the same presumption for children that are not his or hers. Regardless of how the child was treated by the surviving spouse during the decedent’s lifetime, the legislature did not want to take the chance that that child would not be provided for after the decedent’s death.

ScottyMacEsq :

Now real estate in both their names, however, typically passes automatically to the surviving spouse.

ScottyMacEsq :

So unless there was some strange designation on the deed, she would not have a claim based on your mother's estate.

ScottyMacEsq :

Hope that clears things up a bit. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~30 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

so any money above the 30,000 dollars she could make a claim on?

ScottyMacEsq :

1/5 of 1/2 of the money over $30k, yes.

ScottyMacEsq :

And that would be assets that would be your mothers, not assets held in joint accounts, etc...

Customer:

oh okay so if everything was held jointly then she has no claims?

ScottyMacEsq :

Most likely. Again, it depends on the way that things were titled, but typically things pass automatically.

Customer:

okay thank you.. you have answered all of the questions that I have right now.. and have been a big help.

ScottyMacEsq :

My pleasure. Again, If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (>30 minutes) and effort that I spent on this answer and all of your follow up questions unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

Customer:

no not at this time.

ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 11786
Experience: Licensed Texas General Practice Attorney
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