Sitting on an estate after a loved one dies adds layers of complications as years pass

A probate estate was never opened when Mom passed away, as she didn’t have anything of value and lived with us. The only thing she owned was the house. My husband and his brother are the only children left. How can they get the deed changed to their names? Both sons are in their mid-70s now. They are worried as to what will happen to the property when they pass away.

A: They are right to be worried. They’re 25 years late in taking care of this issue. Even though it’s been “business as usual” for your husband and his brother, they really must take action as soon as possible.

In the best case, your husband and his brother can sign paperwork as the sole survivors of your mother’s estate. If that’s the case, they would be the only ones to inherit the property. Having said that, you didn’t mention anything about your father-in-law. Is he still living? If he is, he may have some ownership rights to the home. And, if she died first and he passed some time after, we hope that his only children are your husband and his brother.

You also mention that they are “the only children left.” Were there other siblings alive when your mother-in-law passed away? Did they have children? If so, those grandchildren may have ownership rights to the property.

The real question is: What does everybody want to do with the house? Do both siblings agree that the home should go to the brother that lives in the house with his kids? Do the brothers feel as though they own equal shares of the property?

For each of these questions, there are different answers and, to some extent, those answers may differ from state to state.

However, your husband and his brother would be wise to sit down with a probate attorney or a real estate attorney and look at their options. Let’s say that everyone agrees the property should wind up with the brother that lives in the home. In some states, your husband may be able to convey his ownership in the home to his brother by deed as the sole surviving heirs of your late mother-in-law. But the process may require some additional paperwork and the assistance of a title company.

We think that many attorneys may recommend that you open up a probate case. This would officially transfer ownership of the home from your late mother-in-law’s name into the name of each brother or into the name of the brother who lives in the property. While probate can be expensive, you may find an attorney willing to help in this situation for a much lesser sum than normal.

Your husband and his brother might even find that they can open the probate case on their own if they read up on how probate court works, ask for assistance from the court clerks and are persistent. Doing it yourself isn’t easy, and going into court may lead to a maze of complexities. But if your husband and his brother have the time and inclination, they can try to take it on.

Otherwise, the laws in which the property is located should control how the property would transfer from your mother-in-law. And, if your brother-in-law dies prior to taking care of the issue, you’ll then have to have his heirs (spouse and/or children) sign documents. (This is a good reminder to take a long, hard look at your own end-of-life documents and make sure your estate plans are in good shape.)

There are cases where people wait as long as your husband has to open up probate. Often, after a quarter century so many people have died that it can take a long time to locate all of the living heirs to have them sign documents. You also run the risk that one or more of the heirs will only sign the conveyance document if they get something in return. And when that happens, the whole property can go up for grabs as each heir stakes a claim to what they think they should get as their inheritance.

So, get moving. Decide what you want done with the home. It’s not the best situation to have your husband and his brother own the home together if you know he and his brother agree that your brother-in-law should end up with the property. Your brother-in-law should also decide if he wants to hold title on his own (inheritances can be kept separate), or as joint tenants with rights of survivorship, or in a trust naming his spouse and/or children as beneficiaries.

You and he should decide now what to do and how to move forward, and then find some help. If you or he dies before this is done, there will just be another layer of complication for your heirs to untangle.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)