Who owns the house?

When you add kids to a deed and then remove them, it may be tough to know exactly who owns the house

Q: My boyfriend’s mother died two years ago. Back in 2007, she added her kids to the deed to the home and created a life estate for herself. Then, about seven years ago, she had the kids deed the house back to her.

At that point, she owned the home alone. Apparently, she had signed documents to have the home go into a trust but never filed the paperwork. We also found out that there was an error on one of the documents so the county recorder’s office rejected the papers. The house is still empty. And, one of the kids is having a hard time with the thought of selling the house. Where do we stand at this point?

Who owns the house? It’s unclear

A: Talk about a real mess. From the details of your question, it seems that your boyfriend’s mom ended up as the sole owner of the home. We suspect that in 2007, she thought it would be smart to give the home to her kids. But she wanted to retain the right to live in the home for the rest of her life. If she had left it at that, when she died, the home would have been the kids home free and clear of the mom’s right to live in the home.

However, they all decided to get rid of that arrangement and transfer full ownership of the home back to the mom. We are not sure why they decided to change the arrangement but once the mom was the sole owner of the home, she likely thought she could put the home into a living trust.

Having a living trust would make the question of who owns the house easier to answer

Once the home was in the living trust, the mom would be in control of the home. She could live in the home. And, she could decide how to amend the trust to control who would get the home once she died. Unfortunately, Sam sees this situation quite often when the owner of the home sets up a trust but the owner never records or files the documents with the government office that records or files real estate documents. It’s the single biggest mistake you can make. Without recording those documents, it’s as if she never even wrote them up.

Deed typically governs who owns the house

In your situation, you say that your boyfriend’s mom signed some documents. But they were not accepted for recording or filing by the government office that handles real estate records. We suggest you ask the attorney who drafted those documents to review them. Ask if the documents can be corrected, and recorded or filed. If that attorney is not available, find a different real estate attorney or estate planning attorney in your area to determine next steps.

If the documents transferring ownership of the home into the trust are defective and the home is still in your boyfriend’s mother’s name, her kids will have to file a petition through a probate court to have the title of the home transferred to them.

Was deed transferring home into the trust valid? Then, kids might own the house

On the other hand, if the deed transferring the home into the trust is valid and you can get the deed into the trust filed or recorded, the kids should control the home and be able to sell it. We do have to qualify this statement by saying the terms of the trust control what happens.

A living trust should state how the home could be disposed of after she died. Frequently, people simply state the following:

  • Upon the the death of the trustee and trustor (in this case the same person, your boyfriend’s mother)
  • The successor beneficiaries (the new owners) of the trust
  • And the successor trustees (the people that control how the trust assets are handled)
  • Get to decide if and when to sell the home
  • And how the money would be distributed

Who owns the house will be complicated to clear up

We mentioned this because you stated that one of the kids is having a hard time with the thought of selling the home. The trust document would dictate how and when the home would be sold and who has the authority to decide whether to sell the house.

Which leads us back to where we started: It’s a messy situation. Your boyfriend’s family should seek the advice of good real estate and estate planning attorneys to help sort it out.


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