She Inherited Her Dad’s House But His Ex-Wife Just Moved In. How do you remove your dad’s ex-wife from a house you inherited?

Q: My wife just found out her father died. His home, which is in South Carolina, was left in a living trust. She was also told she is the last living and only heir to this home, and it is supposed to be hers.

But we have a problem. Her father’s ex-wife of 24 years has moved into the house and says she owns it. As far as we know, there is no paper stating it’s hers. What do we do now that she is trespassing and is not an heir?

A: Our condolences to your family on your loss and the difficult situation you now find yourselves deal with.

Let’s start with the trust. In your email, you indicated that your wife’s father left his property in South Carolina in a living trust. Do you have a copy of the trust documents? Generally a person puts a property into a living trust to facilitate the transfer of ownership to the home after the trust owner dies.

The trust owner, your wife’s father, generally would have been the trustee of the trust while living. Upon his death, the living trust should have named a successor trustee. If your wife is the successor trustee and the sole successor beneficiary of the trust, she can act as the owner of the property. She needs to verify the details of the trust to know exactly what her rights are with respect to the property.

The second issue is a distinction between the types of legal documents that deliver assets to other people once the owner dies. The word “heir” typically goes with a will, not a trust. But when you talk about trust documents, the trust document generally will take priority over a will. For example, if a person dies with a will and the will specifies for a home to go to Joe but at a time prior to the death of the owner of the home, the home was placed in a trust and the beneficiary of that trust was Sally, Sally would become the owner of the home.

In certain circumstances, a wife may have an interest in her marital residence. You mentioned that your wife’s father was divorced and presumably the ex-wife did not, or no longer has, any legal interest in the home. If it is true that she has no legal right to be in the home and no legal right as an owner of the property, your wife may need to evict her if she is unwilling to move out voluntarily.

The eviction process will involve going to court and filing papers to have the sheriff evict the ex-wife from the home. You may need (or want) the assistance of an attorney for the process.

Before it comes to legal proceedings, your wife needs to have a thorough understanding of the legal ownership of the home. She might want to hire an attorney to go over the documents with her and give her a complete understanding of what her rights are and what next steps she might need to take. If the ex-wife has a legal claim of some sort, your wife will have to work through that. If her father owed money to his ex-wife, for example, your wife would have to take care of that issue or negotiate a settlement with the ex-wife.

In essence, your wife will need to evaluate what it will cost her in time, effort, legal fees and other costs to evict the ex-wife and what it might cost her to negotiate a settlement to get her out of the home. Good luck.

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