Q: MY FATHER RECENTLY DECEASED. HOW DO THE REMANING SIBLINGS HAVE THE RIGHT OF THE HOUSE.
THE DEED IS IN BOTH MY MOMS AND DADS. THE KIDS ARE NOT ON THE DEED. HOW DO WE PROCEED WITH THE CHANGE OF DEED WITH THE CHILDREN NAME ON IT IN CASE OF MOTHER PASSES AWAY. HOW DO WE INSURED THAT THE PROPERTY IS RIGHTFULLY OURS
A: If the property was acquired by your parents during their marriage, it was probably owned as a “tenancy by the entirety”. That means when your father died, your mother was automatically 100% owner. There are several options to make sure it goes to the kids upon her death. She can sign a new Deed, set up a Trust, or make a Will.
The primary questions are: Does your mother have the legal capacity to make decisions; and assuming she does, what are her wishes as far as the house goes. She is in control.
If your mother wants the house to go to her children, the first thing to do would be to check the name on the most recent Deed to the house. If the names are just your mother and father as Tenants By The Entirety or Joint Tenants With Rights of Survivorship, then when your father died your mother became the sole owner of the house. If the Deed was titled in some other way the situation might not be as clear.
Putting your names on the Deed, presumably for no payment, would amount to a gift by your mother which would raise some immediate tax issues which would have to be considered. It also prevents certain changes from being made without the consent of the other parties named on the Deed.
Your mother could put the house into an irrevocable trust. That would also raise some immediate tax issues that would have to be considered. Many people resist this because they think they are losing independence and it prevents them from making changes should their wishes change in the future.
Adding names to the Deed or putting the house into an irrevocable trust may not be possible if there is a mortgage on the house.
Your mother can make a Will giving the house to you and your siblings, but a Will can be revoked.
The Will is certainly the simplest way to go, but the intention can be defeated even if the Will were not revoked. For example, your mother might put a mortgage on the house, reducing the value of what the beneficiaries might receive because the mortgage would have to be paid off. Your mother could also sell the house during her lifetime and then there would be no house for you and your siblings to receive.
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