Father left no will, how does the deed transfer to mom?

Question

Looking for some help.

My father passed away in 2007. He left no will and my mother's name was not on the deed, but she assumed the  loan on the house (she's been paying it for 9 years now).

I understand in Massachusetts, since my father did not leave a will, half of the estate would go to his spouse (my mother) and the other half would be divided between the children (my siblings, all adults) . The house needs some work but she's unable to take out an equity loan to fix it up because her name is not on the deed. I am actually very interested in purchasing it from my mother but she is unable to sell it. Four out of the Five children (the 5th being my father's from a previous marriage) are willing to sign our shares of the house over to my mother if that's an option. My questions are,

Can the  4 out of 5 children somehow sign our shares over to my  mom? Will this allow her to sell the house and then just pay my half sister her portion and do we need my half sister's permission to sell at this point?

Can my other sisters and mother sign their shares over to me? And then could I just assume current mortgage?

Can probate court be avoided? The house needs some major repairs that can't afford to be put off much longer!

Ive heard very mixed answers from several different attorneys and need some clarification.. I'd really like to take on this house and my mother does not want the headache any more.

Thank you!!

Rick H. · Answer

@Robert Cook I am NOT an attorney, however all I do is CA probate related transactions for the last 25+ years.

You are asking a number of questions and its apparent you are only exploring your family's options.

The existing mortgage (likely still in Dad's name) may not be accelerated due to transfer to a direct lineal heir, so any one or more of your siblings may accept distribution of with much worry about the loan requiring payoff.

As for the inheritance, the heirs are entitled to the NET equity in all assets after settlement of the estate debts. The laws which govern the formula for distribution (called laws of consanguinity) are always state statutes. In CA, the formula is 1/2 to surviving spouse and 1/2 to child, however if multiple children, spouse takes 1/3 and children divide up the 2/3 in equal shares (called per "stirps").

There are technical legal ramifications of either an affirmative assignment of beneficial interest in a Decedent's estate or declining to receive same.

This is where your experienced probate/estate planning attorney will (hopefully) engineer a simple plan for either a buyout of one heir's interest and satisfaction of any creditors or hatch up another plan.

This is what I do, but in CA only.

Dave Toelkes · Answer

the property can only be transferred to heirs by probate.  contact the county probate office and ask how to open probate.  You will at the very least need a death certificate, and an estimate of the value of the property at the date of death.

Matthew Kreitzer · Answer

This depends entirely on what stage of the process you are in, whether you are still in probate or not. In Virginia, beneficiaries can file a Waiver of Interest with the Court, allowing their interest to lapse according to the intestacy rules. If this is post-probate, sounds ripe for a partition suit. Consult a local attorney and do not act on any of this information.

Jacob Geller · Answer

Yeah, I am a lawyer, and I have done some probate work in the past, and there is more to this than what people are suggesting here, particularly considering the new laws that were passed.

It sounds like in 2007 when your father passed away, someone made the ill choice of not probating the estate (your mother most likely got the house by operation of law, not the children).  Don't make the same poor choice now.  Call a probate attorney (if you PM me, I can give you a couple of names).

Rich N. · Answer

Sorry for your loss.  You will need an attorney and go though Probate because there was no Will.

I am not a lawyer......

In Massachusetts, what should happen (hope no relatives contest and fights it).

Your mother (spouse) gets 1/2 of the property and all siblings get an equal share of the remaining half of the property.

Sounds like 4 of the 5 want to sign over the property, but the fifth does not......so make no major repairs until this is resolve.  Because in theory, the value has to be figured out and the more valuable the property is all fixed up means more money to the 1/2 sibling.

Hopefully, your mother can reduce the value to each of you by subtracting back all the expenses over the years.

One thing I would worry about is that most mortgages are not assumeable, so that might be a whole can of worms in itself.

Mike Hanneman · Answer

Go talk to an attorney, make sure to get this right the first time around.

Justin Morgan · Answer

I don't know Mass laws with ownership, probate (or not) and joint tenant or tenants in common (how title is held).  If there are any Mass Attorneys or investors hopefully they can help on BP.  This is a complicated one!

If it was me I would get a few free consultations set up the probate attorneys, estate attorneys and pick their brains on this situation.

I would leave the part out about you buying and just solve your mothers "ownership" issue first.  After she "owns it" then you can work with her on that part.

Father left no will, how does the deed transfer to mom?

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