If a person dies, leaves no will, no instructions or whatever, and has no family, what happens to their house/property? The mortgage is already paid in full.
Deceased. Now, what happens to the house?
- Thread starter Azure Skye
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I think there are state laws covering if a person dies intestate, so it may require researching that particular state. I'm sure there's some law covering how and time length of doing a family search; I know advertising in papers is part of it.
Hmm. Now you have my curiosity up, and it may be info for my WIP. Arrgghh. More research.
ETA: Cross-post with Marlys, but she has the link. Brownie point for her.
Hmm. Now you have my curiosity up, and it may be info for my WIP. Arrgghh. More research.
ETA: Cross-post with Marlys, but she has the link. Brownie point for her.
Hmm. Now you have my curiosity up, and it may be info for my WIP. Arrgghh. More research.
Exactly and I thought I was done. ACK!
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When you say "no family," how far out are you referring to? A person may have no issue (children or grandchildren, etc.), but may have siblings or the siblings may have had issue. Just FYI, here's the link to the Massachusetts intestacy provisions: http://www.mass.gov/legis/laws/mgl/190-3.htm
Ultimately, if there really is no family, out several degrees in all directions, the property will be taken by the state, or else be taken by the local government for nonpayment of real estate taxes. But usually there is some family somewhere, and that person will probate the estate and get title to the real estate.
Oh, and there's one other possibility. If the decedent received government money for nursing home care, there may be a state lien against the property for the amount of that nursing home care, and the state will appoint a public administrator to probate the estate and sell the real estate, keeping the money the state is owed for the nursing home care, and then distributing the balance (if there is any money left over) to the appropriate heirs or, if there are no heirs, to the state (the general treasury, rather than the health care reimbursement fund).
JD, not giving individual legal advice here, just general information
Ultimately, if there really is no family, out several degrees in all directions, the property will be taken by the state, or else be taken by the local government for nonpayment of real estate taxes. But usually there is some family somewhere, and that person will probate the estate and get title to the real estate.
Oh, and there's one other possibility. If the decedent received government money for nursing home care, there may be a state lien against the property for the amount of that nursing home care, and the state will appoint a public administrator to probate the estate and sell the real estate, keeping the money the state is owed for the nursing home care, and then distributing the balance (if there is any money left over) to the appropriate heirs or, if there are no heirs, to the state (the general treasury, rather than the health care reimbursement fund).
JD, not giving individual legal advice here, just general information
That's called escheat, and in most jurisdictions in the U.S. it would occur, as well.
Suppose your MC died with no family whatsoever. No parents, grandparents, children, siblings, nieces, nephews, cousins, 2nd cousins, etc.etc. He or she is "alone in the world." If your MC doesn't leave a will, in most states the property reverts to the state or local government.
It's a provision to prevent land from falling into disuse because no one owns it. It's based on English common law in feudal times, where land reverted to the Crown for a year and a day upon the tenant's death, and then to the lord.
johnnysannie
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If she has outstanding bills - i.e. medical bills - the house can be seized by creditors and sold to satisfy the debt.
As others have said, it depends on the state's intestacy laws. Intestacy laws are the laws covering what to do with the property of someone who dies without leaving a will. Generally speaking the person's spouse will either get everything or get some portion of the estate (half or slightly more than half is common) with the other portion being split equally between the decedent's children. If there is no spouse, then the kids will probably get it; if no kids, probably any surviving parents; if no surviving parents, then siblings; etc. The exact pattern depends on the laws of the state your character is in, and so does the exact degree of relationship--not all states include siblings; some states may include nieces, nephews etc. But if there are no surviving relatives close enough to be included in the intestacy laws, then it reverts to the state.
Also note, intestacy laws could force the house to be sold, because when the intestacy laws include relatives, all relatives of the same degree inherit equally. That is, if there are three surviving kids, the estate will be split in thirds and distributed to them equally. Ditto if there are no kids but two surviving siblings, etc. Basically, if there's more than one heir of the same degree of relationship to the dead person, the estate will be split equally and thus, since this is a house, it'll have to be sold and the proceeds split equally (unless the heirs can agree to some other solution, e.g. one heir buying out the other heir and moving into the house).
You could call the law library of a law school in your state (or the state your character is in) to ask about that. Law librarians are very knowledgable and can look things up for you quickly. Tell them you're writing a novel and need the info for that--they'll be thrilled.
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Can a person leave a will specifically stating their nearest relative does NOT get the property if they die first? If they don't, does that person automatically get it? If they do, must they specify who or what DOES get the property? Or just that their relative does NOT? (I'm thinking of a guy with deceased parents, no wife or children, and a half-brother with whom he is not close and may have some reasons for not wanting the property to go to the half-brother.)
johnnysannie
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In most states if someone dies without a will, a court decides on the distribution of the property (whether they have heirs or not). If someone went to the trouble to have a will written, then surely he or she would desiginate who would get the house - or not. Best way to keep someone from getting it would be to desiginate it goes to someone else or even a public entity (such as a college, church, etc).
I believe the best way to do this would be to leave the house to someone else. If the person doesn't have any other relatives, they could leave the house to a friend, a charity, or even to the state or local government.
They could also leave the house to a pet. Leona Helmsley did this, leaving about $12 million to her dog and $1 each to two of her grandchildren. I don't understand the legal technicalities, but it seems that if you leave someone out of your will, they can contest it and there is a fair chance that they will win. However, if you leave them a small amount like $1, it's more difficult to contest, legally.
I think legally, a will is an instrument designed to dispose of property. So, I don't think excluding someone without designating who the property DOES go to would be effective. I think such a will would probably be invalid, and the property would be disposed of as if there was no will -- meaning that it would go to the nearest relative.
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Generally (although it varies from state to state) you can disinherit anyone you want except a spouse, who may be entitled to claim a certain percentage of the estate if you leave him/her less than that percentage. For kids, it's sometimes required that they be named specifically (which is why you sometimes see the one dollar thing, although it's the naming that matters more than the dollar).
OTOH, it just doesn't make any sense that someone would write a will that ONLY disinherited someone, without providing for where the assets would go. As long as you're going to write a will, you might as well name a beneficiary or two.
The most basic will just says (in legalese, though): I give everything to so-and-so, and if so-and-so predeceases me, then to a different person. To disinherit someone, you add language to the effect of "I specifically decline to give Person X anything."
I suppose one possibility is that the will gave everything to Person A, with Person B getting things if Person A predeceased, and then both of them predeceased without issue, and there was a clause disinheriting Person C, then the assets would go to the next nearest kin after Person C or, failing that, escheat to the state. It's a pretty remote possibility, though.
JD
OTOH, it just doesn't make any sense that someone would write a will that ONLY disinherited someone, without providing for where the assets would go. As long as you're going to write a will, you might as well name a beneficiary or two.
The most basic will just says (in legalese, though): I give everything to so-and-so, and if so-and-so predeceases me, then to a different person. To disinherit someone, you add language to the effect of "I specifically decline to give Person X anything."
I suppose one possibility is that the will gave everything to Person A, with Person B getting things if Person A predeceased, and then both of them predeceased without issue, and there was a clause disinheriting Person C, then the assets would go to the next nearest kin after Person C or, failing that, escheat to the state. It's a pretty remote possibility, though.
JD
Thanks. Is the filing of wills a matter of public record? Can you find out who does and does not have one? Not content, but just existence?
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Generally wills don't get filed until the person is dead. Usually, during the person's lifetime, the person keeps the will him/herself, or else the attorney keeps it.
So, no, generally there's no way to know if someone has a will unless he/she tells you.
In Massachusetts, there is a procedure for filing a will for safekeeping with the probate court, and in theory it could be done before death, but that happens rarely.
Once the person is dead, and a petition for probate (or whatever the procedure's called in the relevant state) is filed with the will, the will becomes public record, and anyone can read it.
JD
So, no, generally there's no way to know if someone has a will unless he/she tells you.
In Massachusetts, there is a procedure for filing a will for safekeeping with the probate court, and in theory it could be done before death, but that happens rarely.
Once the person is dead, and a petition for probate (or whatever the procedure's called in the relevant state) is filed with the will, the will becomes public record, and anyone can read it.
JD
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It it's mortgaged, the bank probably gets it.
Linnea
That depends a lot upon the situation and the type of mortgage. Some types of loans require that the mortgage-holder carry insurance that pays off the mortgage if they die. (I think this is required on FHA loans, but don't quote me on that.)The mortgage insurance is part of the monthly house payment.
If there is no mortgage insurance, the bank or other mortgage holder would have a claim against the estate. The heirs could pay off any remaining balance on the mortgage in cash. In most cases, they would also be able to get a mortgage in their own name (especially if there was a high equity in the property.) In effect, they would borrow the money to pay off the remaining balance on the mortgage, using the house as collateral.
If there was little equity in the house (maybe the deceased owed $98,000 on a $100,000 home) then the heirs would likely sell the property. The mortgage company would receive their money directly from the sale, and the heirs would never see it. If for some reason the heirs didn't do this, then the court would likely order it.
If you want to make it simple for your story, just have the person own the house outright with no mortgage.
Nobody dies without leaving some family somewhere. By that I mean you may have a third cousin twice removed. If that is your closest living relative, the intestacy statues of that jurisdiction would typically provide that such relative would get the estate. The trick of course is finding that person. There are skip trace services that specialize in this. My law firm frequently employs them.
One thing is certain. Death brings lawyers
One thing is certain. Death brings lawyers
johnnysannie
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True enough to a point, Mike. A few years back, I did some part-time legwork for a law firm to find such long lost relatives but there are some folks who have no remaining living relatives. And, in some cases, if the home owner has unsatisfied debts at the time of death, his or her creditors might have a shot at settling the debts with the proceeds of the home.
In Mexico, wills MUST be filed with the court to be valid.
In the US, it varies by state, none require it, some allow it.
I just want to reemphasize what another poster mentioned: wills are NOT filed until the person dies. Until the person dies, a will has absolutely zero legal significance. It means nothing and has no power until the person dies. The reason it means nothing, has no power, etc. is that you can change your will any time you want, and all that matters, legally speaking, is what the LAST will you wrote says. We won't know which will is in force until you die, because until then, you could revoke your existing will and write a different one.
However, that being said, once a person dies, I have trouble imagining how you could possibly avoid having to produce their will in court, assuming they have a will, that is. I don't think there's any way to avoid probate (i.e. court proceedings to distribute property) unless the person dies without property. Dying "without property" can be a technicality: if their property is all jointly owned with rights of survivorship, and/or all in trust, then it doesn't need to be probated because it automatically distributes to someone else (i.e. to the other joint owner, or in the case of a trust, to whomever the trust says it goes to).
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