Q: My father passed away a year and a half ago with few assets other than his home. I am executor of his will. He left me his house and all his personal effects but the will stipulated that his current wife would be permitted to live in the house until she dies or moves. She would continue to be responsible for its upkeep and taxes.
I have not probated his will yet, because I don’t have the money, and the attorney who wrote the will made a mistake by saying the executor would be responsible for paying all bills. (He failed to say the money to pay would come from the estate. That attorney is now also deceased.)
The attorney I talked to recently suggested that I wait until the new year before transferring title to the home to avoid having my step-mother at age 87 lose the elderly tax exemption on the property. It is now past that year and I still have not transferred title to the home.
What kind of trouble have I made for myself? At the time of my father’s death, he had no creditors and all his bills have been paid in full. Do I still have to go through all the steps required to probate the will? What should I do?
A: We’re sorry for your loss. Small estates can sometimes be a problem for the exact reasons you describe. But for people in your situation where the only asset that might need to be probated is the primary home, there are some solutions other than probate in some states.
But to be clear, probate would be the method of choice to take care of real property issues such as homes, land, and buildings and personal property issues such as jewelry, personal effects and financial issues.
If you and your siblings, if you have any, and your step-mother and other direct relatives of your father are all in agreement that you should be the owner of the home, you may be able to have everybody sign a deed transferring title of the home from your father’s name to your name. You may even be able to create a life estate for your step-mother to remain in the home until she dies or moves out and stipulate that she would continue to be responsible for all of the expenses of the home.
While taking this roundabout way to transfer the title to the home might not be for everyone and may not be available in all states, it may be an option for you. However, you still might need an attorney to help you out.
A second option for you would be to go to the courthouse and seek some help from the clerks at the probate department. You may be able to file all the paperwork yourself and with some basic guidance may be able to stand before the court, open the estate and have the property transferred into your name. In those same court proceedings, your step-mother could retain a life estate in the home. It may not be easy for you and it might be time consuming and confusing, but you might be able to take care of the case on your own.
Keep in mind that your father did not seem to have any assets left to pay for the attorney. So while the original attorney should have included a clause in the will permitting the expenses of the estate to be paid from the estate, the only asset you have left is the house. So unless you sold the house, you would still end up paying for the costs of probating the will.
While these ideas may or may not work for you, you might try to find an attorney that can work with you in minimizing your expenses in probating the will and having the title of the home transferred into your name.
Wills are essential to have but in some cases living trusts are better. Had your father transferred title of the home from his name into a living trust, you could have been the successor trustee when he died. As the successor trustee, you would not have needed to go to court to get court approval to sell the property or to transfer the property from the trust’s name to your name. But here again, your father would had to have spent some money prior to his death to create the living trust and transfer the home from his name into the trust.