Deceased owners no will

9 Replies

How can I help these sellers? The parents owned the home which have since passed away. The parents left no will but the mother wanted the son to live in the home since he is mentally handicapped. The rest of the family want to get rid of the home since it is too much for the brother and want to get him in some sort of assisted living. They were advised to get a lawyer to get the deed in the brothers name in order to sell it, since it is still in the deceased parents name. This will cost them roughly $800 which I mentioned I could help in fronting them this money if I were to put the home under contract and just take it back in closing. I'm not really sure as to how to help them in getting the deed in the brother or any of the sisters name in order for them to be able to legally sell it. Any ideas as to what I should advise them to do? This is in Indiana.

Intestate? then next of kin.

Sounds like you need an Affidavit of Heirship.

"Getting the deed in the Brother's name" ought not be your objective.

Lots going on here. 

If you are trying to acquire title, that's one objective.

Playing the role of social worker in trying to help the family place the Brother, is another.

These might be conflicting objectives if title were to pass to Brother and affect his chances of getting placed in assisted living. 

There are attorneys who work in eldercare, estate administration and family law as specialists. Decide which objective is important for you then focus on that one solely.

When there is no will, then ALL heirs get a cut. To put the deed in the name of just one heir (without a will specifying that) is silly, and to put it in the name of one who might not have the mental capacity to legally carry out actions needed to transact the sale of a house is ... well, ludicrous. 

What should happen is that somebody has to open probate, somebody becomes the personal representative for the estate, the personal representative then gets letters testamentary that allow the personal representative to act on behalf of the estate, and then the personal representative conducts the sale and signs the deed (on behalf of the estate who is the grantee). Proceeds from the sale then get divided accordingly among all the heirs. 

Hopefully all heirs agree to sell the estate.

Can't help but wonder what else they may have left behind. Bank accounts? Mortgage and other debts (ie credit cards)? 

Often vehicles and other personal property get 'taken' by relatives who circumvent the probate process because they're well aware of how easy it is to go thru the deceased's things and simply take them or in the case of vehicle or mobile home, sign the title over to themselves. Luckily, with real estate title can't be passed/seized so easily.

If the home was their only substantial asset, in most probate courts this will help move things along quicker than if they had other investments.

I agree without a will, there's no motive to 'get the deed in their brother's name' as without last will and testament, all heirs (ie all deceaseds' children) can claim a stake in their estate during probate.

As @Rick H.  

says, there are lots of issues here.  Putting the house in the brother's name is the worst option. Send me a pm, if you would like for me to share some ideas that would allow brother to get the help he needs.

House doesn't necessarily have to go to the brothers name, the seller thought it would be best since he had been living there and that's what the parents wanted before they passed, so he had somewhere to live. None of the family members want anything to do with the house. Main concern is getting the brother to assisted living since the house is too much for him to handle. Affidavit of heirship sounds like the best option right now. How is this usually done?

I'm pretty sure the Probate process is in place to make sure all heirs have been informed and made an informed documented decision to claim or not claim a stake in the successions, if mentally of sound mind.

Not sure how a minor or a mentally challenged would be able to stake their claims in the affidavit - perhaps through their legal guardian and with legal counsel?

Many states have substantial inheritance taxes and/or transfer fees that the beneficiary must pay in order for property to pass from deceased to heir(s). Given America's average home value, this could easily reach into the tens of thousands of dollars in taxes/transfer fees.

Had the parents created an irrevocable trust such finheritance fees could have been avoided or minimized, but oh well, rest in peace.

When you're stuck on a particular step in a process, my experience is that we really haven't completed the prior step fully. 

In order to be a seller, you have have have something you can sell. In this case, parties do not have record title (yet) so at best they have is the black box known as inheritance.

They might be able to assign their beneficial interest in order for you to buy pizza-by-the-slice, however you'll still need to ultimately end up with marketable title. For that, it will most likely require a either a full or summary probate.

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