Farmville, NC asked in Real Estate Law for North Carolina

Q: If Property was not brought into a Divorce, and Husband lives there til Death, does it still go to me?

I am still listed on the Property at the tax office. As far as I can tell, no will has been done on his part. The lady at the tax office told me a Will might override me having the property if he passed. What do I need to do? His health is failing, and I am afraid it will fall into the wrong hands. I have the actual Deed. I took it when I left.. Can someone help me with this. I don't need to wait any longer..

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2 Lawyer Answers
Rachel Lea Hunter
Rachel Lea Hunter
Answered
  • Cary, NC
  • Licensed in North Carolina

A: Question does not make sense as phrased. Since you have the deed, there should be two columns under the headings of grantor on the left and grantee on the right. The grantee is the person who has title to the property. Whatever the tax office has is irrelevant for ownership of land purposes. So whose name is on the deed? If its yours, you have nothing to worry about. If it is in the husband's name only, then this brings up several points.

I don't know what you mean that property was not brought into a divorce. Property is not brought into divorce. If people own land, they can get a divorce - no property need be involved. If the divorcing couple have assets, they can make an agreement providing for division of their assets - husband takes x and wife takes y. If the husband and wife do not have any agreement then either of them can ask the court to divide up their stuff at the time of divorce (called equitable distribution). If either the husband and wife do not raise equitable distribution claims prior to entry of the divorce decree, then the husband gets to keep stuff titled solely in his name and wife keeps stuff titled solely in her name.

If people later remarry and bring property they had from before to the new marriage and never re-title it and then die leaving behind their new surviving spouse, then the new surviving spouse may stand to inherit some of the property even if the dead spouse had no will or did not make a new will naming the surviving spouse as a beneficiary. The share of the surviving spouse would be determined as per the estate laws of the state where the dead spouse lived at the time of his/her death. If there is no will, then the intestate share will depend on if the dead spouse had any children. If there is a will, then it must leave the surviving spouse as much as he/she would inherit under the elective share statute or else the surviving spouse would claim the elective share. The elective share is roughly about 1/3rd of the estate and a surviving spouse can claim an elective share in both real and personal property.

Since you do not relate what your issue is, I suggest that you contact an estate planning attorney to review what you have. However, if the husband is in failing health, as long as he is mentally competent, he can make a will or make changes to the deed but this has to be his choice - its not something you can do for him unless you have a financial power of attorney and even if you do then there may be limits as to whether you can make gifts of the property to yourself.

And what do you mean that property may fall into the "wrong hands?" If your name is not on it then you do not have a right to it unless you are a current spouse or unless your name is on the deed to the property.

Amanda Bowden Johnson
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Answered
  • Jacksonville, NC
  • Licensed in North Carolina

A: If you are on the deed and it is a 'by the entireties deed' and the property issue was not addressed in the divorce, then will or not, the property should pass to you by right of survivorship. However, since it appears your ex may only have a life estate, your interest in the property may be limited also. In which case, the 'tax lady' who likely ought not having been providing legal advice, may be right. You will want to consult with an experienced real estate attorney ASAP to review your options and take what ever steps are necessary to preserve any interest in the property you may have when your ex dies. Good luck to you!

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