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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 16840
Experience:  Licensed Texas General Practice Attorney
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I owned a home with a woman for about two years from October

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I owned a home with a woman for about two years from October 09 until her death in Jan 012. The co ownership was so I could care for her during her battle with kidney failure, leg amputations, etc. She died before completing a will, but she did leave written, signed instructions for distribution of her personal property and her interest in the home. She signed the interest in the home over to me. Her two children received her IRA and her personal belongings.

I applied for a loan mod and it was finalized in April 013. The mortgage was moved to my name only through an assumption.

Her son (out of prison) has decided he is now entitled to half of the house. Is this possible? What should I do to make sure I don't have an issue down the road if I want to sell the house, or is it a moot issue?

Thanks,

Larry

ScottyMacEsq :

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

ScottyMacEsq :

When you say that she signed the interest over to you, in what way did she do that? Was that in a deed giving you her part of the property? Was the property held with "right of survivorship" in the deed?

Customer:

She just had a hand written list of personal property which identified what each child was to receive and in that document she gave me her car and her "half ownership in the house." The documents I received when the loan modification was completed were in my name only...after they verified she was no longer living, etc..Larry

ScottyMacEsq :

And in the deed that you're on that you co-own the house, does that say "joint tenant" and/or "right of survivorship" anywhere?

Customer:

I will have to check on that. I know the subordinate deed of trust issued by HUD does not contain that language. I extended a mortgage reduction modification which meant that there is the deed for the house and a subordinate deed of trust in the amount of $48,000 that has to be paid when the house is sold.

ScottyMacEsq :

Were these instructions that she left in her own handwriting?

Customer:

Yes, and signed and dated...Larry

ScottyMacEsq :

(by the way, a "deed of trust" is not the same thing as a "deed"... the deed is the document that gives you legal ownership, whereas the deed of trust is a document that secures the property to repay a loan)

ScottyMacEsq :

You would want to check on the actual deed that the previous seller (or this woman) added you on that gives you that right to own half.

ScottyMacEsq :

If there is a "right of survivorship" mentioned in the deed, then the property is yours.

ScottyMacEsq :

Right of survivorship means that the property passes automatically to the other individual(s) on the deed.

ScottyMacEsq :

Joint tenancy is also something that can give you this.

ScottyMacEsq :

Now if it is silent as to that fact, or says "tenants in common" etc... then it would continue to be her property until transferred (that is, it would go to the estate).

ScottyMacEsq :

And in that situation, only if this document were a will would it be something that you could claim the property on.

ScottyMacEsq :

A non-will document that expresses desire or instructions that something happen is not a will.

ScottyMacEsq :

And legally, if there is no will, the property would pass via the law of intestate succession. In short, if she did not have a spouse, her children would get everything that she owned, even half of the property.

ScottyMacEsq :

The state of Idaho recognizes holographic wills in certain circumstances. A holographic will is one written in the testator's handwriting but not signed by any witness.

ScottyMacEsq :

So even if this does not say that it is a will, if it intends to dispose of property upon death, etc... and shows the intent that it be like a will, it could be determined to be a will.

ScottyMacEsq :

As such, if the deed does not have the joint tenancy language or right of survivorship language, you would need to take the document to a probate attorney to file for probate.

ScottyMacEsq :

One need not be a lawyer to serve as an executor, administrator, or guardian. However, the executor, administrator, or guardian must be represented by counsel. As executor of a decedent’s estate, you don’t represent only yourself. An executor represents the interests of beneficiaries and creditors. This responsibility to act for the benefit of another is known as a fiduciary relationship. It gives rise to certain legal obligations and responsibilities that require legal expertise. The attorney you hire represents you in your capacity as executor and assists you in representing those for whom you are responsible.

ScottyMacEsq :

That being said, if you find yourself in that position, you need to contact an attorney in your area that deals with probate cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you, XXXXX XXXXX very, very helpful...Larry

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq :

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