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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86566
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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if someone is deceased and no will is found, does the home

Resolved Question:

if someone is deceased and no will is found, does the home and everything automatically go to his children ? Even if the deceased was estranged from his child?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your loss. Were you married to the individual, or not? Is your name on any of the property/accounts?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.


He is my brother, we were very close so thank you. Im grieving badly still. His daughter and him have not spoken in over 4 years, I have 4 years of emails of him trying to talk to her and she never replied once. Previously while him AND I were in the hospital, she took over my job temporarily and worked in his office. She used all the business money and paid all her personal bills which started their argument, it put him out of business. Over time he realized he still wanted his daughter in his life and begged her to talk to him , he was battleing 2 kinds of cancer. She never did. When he passed, she went to the courthouse and claimed there was no will, which I still believe one exists somewhere, she applied to be representative but never went back with the nessacary paper work. In the meantime, had an esate sale and sold his Mercedes. His beautiful house is sitting there now vandalized, went for tax sale 10/2012 and I want closesure

Expert:  Ely replied 1 year ago.
Thank you, Beverly. Was he married? Divorced? A widower?
Customer: replied 1 year ago.


I am disabled and don't live on much, I cannot afford to put $ out for this if his daughter will end up with everything anyway. I actually need a home to live in. I don't know how I would even feel living there but need to know my options.

Expert:  Ely replied 1 year ago.
Beverly,

Thank you for that information, however, I am not sure if you had seen what I asked:

Was your brother married? Divorced? Or a widower? This is important.
Customer: replied 1 year ago.


divorced

Expert:  Ely replied 1 year ago.
Thank you. I am guessing that his name was the only name on the home, and yours was not.

On this website, I do not always get to give good news, and I am afraid that this is one of these times.

Allow me to explain how probate works here, if you would.

The Need for Probate
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands.

Who Gets What?
If there was a will, then the will dictates the inheritance. If there was no will, then the Court goes off default rules succession, which in New Jersey may be found here.

According to 3B:5-4, a child is next in line to inherit the property/assets.

Ergo:

if someone is deceased and no will is found, does the home and everything automatically go to his children ?

Yes, I am afraid so.

Even if the deceased was estranged from his child?

Yes. Even if they were estranged, unless he specifically had a will and wrote her out of it, then she stands to inherit even if they were not on good terms.

Of course, the onus is on HER to file for probate to have this done.

Of course, if you can locate a will that writes her out, then you would be the next in line to inherit.

I am very sorry.

Surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 1 year ago.

yes I wanted honest answers before I proceeded with anything. his daughter did apply to represent this estate but never went back to the court house with the qualifying documents therefore is not the representative. I know he had a will but don't know where it went, his safe was empty when I was finally allowed in. So if there is no one representing this estate, and I apply for it, she will still end up with everything?

Expert:  Ely replied 1 year ago.
Beverly,

Thank you for your reply.

So if there is no one representing this estate, and I apply for it, she will still end up with everything?

I am afraid so, as the Executor is merely a position wherein the individual makes the division in accordance with the will or (if no will) then the default rules. So unless you can find that will, then she gets the property.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 1 year ago.


Also, the house WAS in foreclosure and I (100%) believe she still thinks it is and that's why she never finished the papers with the court. I know for a FACT the house has since been paid in full, otherwise she definetly would be doing as she was supposed to do. My brother took a lot of pride in his beautiful home, and now its being vandlized just sitting there, if she knew it wa paid off she would have sold it by now and took that $ too. Meanwhile, I need a home, I honestly don't know how I would feel being in that home without him but where I live now is unsafe . I don't understand the laws sometimes. I have 100`s of emails proving he wanted her to have nothing but they are just emails. Nothing legal. I guess since she is greedy she will end up without the thing that could have made her the most $ - the house.

Expert:  Ely replied 1 year ago.
Beverly,

I am sorry and I do understand where you are coming from. But emails do not constitute a binding will. according to N.J.S.3B:3-3, a will must be:

(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

Otherwise, the emails do not count, I am afraid.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86566
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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