How Is Property Divided With No Will?

Added May 11, 2007 by Ilyce R. Glink

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Summary: How will property be divided if there is no will? How the property will be divided depends on how the title to the property is held.

Q: My father has passed away and had no will. How will his home that he owns with his current wife (not my mother) be divided after it sells? The house is titled in both my dad and stepmother's name and he has 3 children.

They paid $60,000 for the property in 1995 and today it is worth $200,000 to $250,000.

A: The answer to your question depends on how your father and stepmother owned the property. If title to the property is held as joint tenants with rights of survivorship, she automatically received his share of the property upon his death. That means, she owns the entire property herself and when it sells, she will receive all of the profits from the sale.

However, if your father and stepmother held title as tenants in common, and your father died intestate (without a will), then state law steps in to dictate how his assets will be divided upon his death.

If they were tenants in common, it's possible that his share of the property would be divided in half. His widow would receive half and the other half would be divided amongst you and your two siblings.

Let's say your father and stepmother owned the property free and clear and after the expenses of selling it, your stepmother nets out $200,000. If they owned the property equally as tenants in common, your father's estate's share would be $100,000. Your step mom would receive $50,000 and you and your two siblings would each receive one-third of the remaining $50,000, or approximately $16,666 each.

Please talk to an estate attorney for further details.

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