Property Transfer After Probate

Added January 1, 2008 by Ilyce R. Glink

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Summary: When someone dies without a will the estate of that person goes through probate according to state law. How can family members enable a home sale when the legal status of a relationship is unclear? Hiring an estate attorney can help sort out such a property transfer after probate.

Q: My father passed away about two weeks ago. He was in a committed relationship with my stepmother for approximately 30 years.

He did not have a will. He owns, to my knowledge, one home that is paid for and one home that he still owes money either by mortgage or land contract. Both homes are in Illinois (one is in Chicago and one is in Rockford).

My dad had two children, me and my sister. I am the oldest. My stepmother wants me to sign power of attorney to her so that she can sell the home that is paid for. I don't have a problem doing this but I don't want to do anything illegal or stupid.

I don't have much income. I go to school on grants and my home in Indiana is fully paid for. I want to help my stepmother but I don't want to create a problem for myself in doing so. Also is it possible to avoid going to probate court or is this illegal? Can you please help?

A: Was your father married to your stepmother or not? You call her "stepmother" but then you say they were in a 30-year committed relationship. If they weren't married, and your father didn't have a will, she may not be entitled to any of his estate unless they lived in a community property state like California.

Since he died intestate, or without a will, the state in which he lived will divide the money from the property. You mentioned that he owned two houses in Illinois, so I'll go out on a limb and assume he is an Illinois resident.

In cases like these, where a parent dies intestate, typically half of the estate (the assets that are left after paying down any debts) goes to the children and half to the spouse, although this may vary a little based on the state.

All of his estate will have to go through probate, primarily because he does own real estate. Your stepmother may be able to sell the house with a power of attorney without having the estate probated. You will need to talk to a real estate attorney to make sure that all of the people that could benefit from the estate are in agreement with the sale and that you can move forward outside of probate. In some states, you have to go through probate but in others -- when the estate is small -- you might be able to avoid probate.

Although you don't have a lot of money, you and your siblings and your stepmother (if she was married to your dad) should sit down with a competent estate attorney who can tell you what you need to do and help you achieve your goals (whether that is to sell the property, and give the cash to your stepmother, or keep some for yourselves).

In the meantime, I wouldn't sign any legal documents until you have had this conversation with a good attorney (one that you selected). If you don't know a good attorney, please call your local bar association to find one.

Jan. 1, 2008.

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