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who to will my house to


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#1 SamIAM0909

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Posted 17 January 2013 - 08:12 AM

In Minnesota:

My husband passed away this passed October. My name is not on the deed. I am working with an attorney to get my name on the deed. There is no will.

My husband has two grown children not living in the house. This attorney said that he will be able to put my name on deed, but that if something happends to me, the house will automatically go to his children. My question is, since my husband has passed, and my name is on the deed, why can't I will the house to whom I want?

Thank you,
Cindy

#2 Guest_FindLaw_Amir_*

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Posted 17 January 2013 - 08:19 AM

Condolences on your loss. You may visit the Estate Planning Center and read Understanding Intestacy: If You Die Without an Estate Plan as a good resource to learn more about this subject matter.

#3 pg1067

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Posted 17 January 2013 - 09:15 AM

My condolensces on your loss.


My husband has two grown children not living in the house.


This statement makes it appear that these children are not also your children. If that's not correct, it may change my comments below.


This attorney said that he will be able to put my name on deed, but that if something happends to me, the house will automatically go to his children. My question is, since my husband has passed, and my name is on the deed, why can't I will the house to whom I want?


You need to clarify with your attorney exactly what he is thinking here.

As in most (if not all) states, in Minnesota, when a person dies without a will and is survived both by his spouse and by children who are not also children of the surviving spouse, the estate gets divided between the surviving spouse and the surviving children. From a quick google search, it appears that, in Minnesota, the surviving spouse gets 100% of the first $150k and 50% of anything above $150k.

That begs the question how much your husband's estate is worth. There may also be issues as to whether the house is really marital property even though it was titled in your husband's name only.

If, when all is said and done (i.e., when all creditors have been paid), the estate has assets in excess of $150k -- and, in particular, if the equity in the house is greater than $150k -- there may be issues with you getting the house in your name alone (it's not an issue of being "on the deed" since a new deed will be recorded). At this point whether you have a good or not so good relationship with your stepchildren may come into play.

As far as what happens "if something happen[s] to [you]," I assume things happen to you every day. If you're talking about your death, that's a matter of when, not "if." In some states, in situations such as yours, the surviving spouse is entitled to (at a minimum) a life estate in certain property -- in particular, in the marital home. A life estate means that you have the right to possess the property while you live, but you don't own the property, and both the possessory and ownership interest revert to someone else upon your death. If you had a life estate in your marital home, you would not be able to will it to anyone upon your death. However, my quick google search revealed nothing like this in Minnesota law. As far as I can tell (and, as you might expect, my research was both quick and cursory), one of the following will happen: (1) you will end up owning the home outright, in which case, you can will it as you see fit upon your death; (2) the home will have to be sold, either to satisfy estate debt or to split the equity with your stepchildren; (3) you will end up jointly owning the home with your stepchildren; or (4) you will work out some sort of alternative arrangement with your stepchildren. Under no circumstances can I see a result whereby the home would automatically go to your stepchildren upon your death (i.e., a life estate type situation) (unless that's something you work out with your stepchildren under the 4th option I mentioned above.

With the above in mind, I suggest you clarify exactly what your attorney has in mind.

#4 harrylime

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Posted 17 January 2013 - 09:36 AM

Just to add... The relevant part of the Minnesota intestate succession statute:

524.2-102 Share of the spouse.
The intestate share of a decedent's surviving spouse is:
(1) the entire intestate estate if: (i) no descendant of the decedent survives the decedent; or (ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;


(2) the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, or if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.



#5 SamIAM0909

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Posted 17 January 2013 - 12:42 PM

I'm not understanding what you mean by one of the four will happen. I don't want my stepchildren to have any part of this house. I still owe on this house, and am making the payments. Why should I share this house with stepchildren when I'm paying for it.

What I'm asking is to explain this to me in non-lawyer words. The attorney I'm working with wants the stepchildren's addresses and SS#. Why?

Sorry to keep bothering you, but my brain is not working very well.

Cindy

#6 harrylime

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Posted 17 January 2013 - 01:06 PM

I don't want my stepchildren to have any part of this house.


Since there was no will and apparently you did not co-own the house with your deceased spouse, you do not get to make that call. The laws of Minnesota determine what happens.

Assuming that this house is the homestead, then:


524.2-402 DESCENT OF HOMESTEAD.
(a) If there is a surviving spouse, the homestead, including a manufactured home which is the family residence, descends free from any testamentary or other disposition of it to which the spouse has not consented in writing or as provided by law, as follows:

(1) if there is no surviving descendant of decedent, to the spouse; or

(2) if there are surviving descendants of decedent, then to the spouse for the term of the spouse's natural life and the remainder in equal shares to the decedent's descendants by representation.

( b ) If there is no surviving spouse and the homestead has not been disposed of by will it descends as other real estate.

( c ) If the homestead passes by descent or will to the spouse or decedent's descendants or to a trustee of a trust of which the spouse or the decedent's descendants are the sole current beneficiaries, it is exempt from all debts which were not valid charges on it at the time of decedent's death except that the homestead is subject to a claim filed pursuant to section 246.53 for state hospital care or 256B.15 for medical assistance benefits. If the homestead passes to a person other than a spouse or decedent's descendants or to a trustee of a trust of which the spouse or the decedent's descendants are the sole current beneficiaries, it is subject to the payment of expenses of administration, funeral expenses, expenses of last illness, taxes, and debts. The claimant may seek to enforce a lien or other charge against a homestead so exempted by an appropriate action in the district court.

(d) For purposes of this section, except as provided in section 524.2-301, the surviving spouse is deemed to consent to any testamentary or other disposition of the homestead to which the spouse has not previously consented in writing unless the spouse files in the manner provided in section 524.2-211, paragraph (f), a petition that asserts the homestead rights provided to the spouse by this section.



#7 Fallen

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Posted 17 January 2013 - 01:09 PM

"I'm not understanding what you mean by one of the four will happen."

You may want to re-read, and note that at least one person answering is a stranger going by what you say, and referring to state law.

"I don't want my stepchildren to have any part of this house."

We cannot know from here whether they in effect already do, or whether your attorney has figured out that (i) your husband didn't owe any money to anyone such that the place would need to be sold to cover that debt, and (ii) whether his estate or at least this place is worth less than the $150k such that you inherit it 100% and his kids nothing (seeing as how he died without a will) because one or more of YOUR descendants wasn't also one of your husband's. We'll presume that (ii) applies and the place is worth $150k or less, which means under your state's law you inherit the entire interest. That doesn't mean the court and/or at least the kids won't have to effectively formally acknowledge that so you don't have to go through technical hoops with the court.

I don't think harrylime's provided info as to homestead is relevant in the case of $150k or less estates. Again, one presumes your attorney has eliminated possibilities that husband's kids inherit a share of this place.

"Why should I share this house with stepchildren when I'm paying for it."

This isn't a productive "question" or one to put to strangers.

"What I'm asking is to explain this to me in non-lawyer words."

At least one responder was using "non-lawyer words".

"The attorney I'm working with wants the stepchildren's addresses and SS#. Why?"

Did you not ask him? Because they are their father's heirs along with you, under the law.

If the attorney isn't explaining this in terms you can understand, then you need to pester him to keep trying again (or consulting with a different attorney). We can only respond based on info provided and what we know about the law.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#8 pg1067

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Posted 17 January 2013 - 02:55 PM

I'm not understanding what you mean by one of the four will happen. I don't want my stepchildren to have any part of this house.


What you want isn't terribly relevant except as it concerns the possibility of settling with your stepchildren. If your husband had made a will, then what he wanted (as expressed in the will) would be relevant, but that doesn't matter either since he didn't make a will.


What I'm asking is to explain this to me in non-lawyer words.


While I get that your "brain is not working very well," I thought I already did this. If you want clarification, you're going to have to give me something to go on here. My prior response consisted of 490 words, so it's not especially reasonable simply to say, "I don't get it" and ask me to re-write everything I wrote before.

As I said, because your husband died without a will, his estate gets divided according to the laws that "harrylime" quoted (and which I referenced generally). Based on "harrylime's" second post, it appears that my four possibilities may not be accurate, but we don't have enough information to know for sure. Because we don't know how much the house, or your husband's estate in general, is worth, we can't fully know how the law applies to your situation. That's why you have any attorney.

Going back to your original question, which asked for an explanation why you can't will the home as you please, the answer is because that's what the law says (assuming the house qualifies under the "homestead" law quoted above). Have you ever seen or heard one of those commercials for companies like LegalZoom where they say, "if you don't have a proper will, then the state will decide who gets your stuff when you die"? This is what those commercials are talking about. The folks who enact laws recognize the reality that not everyone makes a will. That being the case, there needs to be a law that says what happens when someone dies without a will. The Minnesota Legislature obviously decided at some point that the scheme they came up with -- as reflected in the laws that "harrylime" quoted -- is the way it should work. What that means, in effect, is that, when someone fails to make a will, he or she is effectively choosing the distribution scheme enacted by the Legislature.


Why should I share this house with stepchildren when I'm paying for it.


You're not sharing it with anyone. While your alive, it's all yours. Obviously, you have to pay the mortgage because, if you don't, the lender will foreclose. Sorry if you don't like that result, but the law is what it is. If your husband wanted you to have the freedom to do as you pleased with the house, then he should have made a will. Sorry.

#9 harrylime

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Posted 17 January 2013 - 04:15 PM

I don't think harrylime's provided info as to homestead is relevant in the case of $150k or less estates. Again, one presumes your attorney has eliminated possibilities that husband's kids inherit a share of this place.

I certainly can't say whether the intestate succession statute or the homestead descent statute governs in Minnesota.

But I tend to give the benefit of the doubt to an attorney in the applicable state. And what the OP's attorney is saying sure sounds like life use for the OP with remainder interests for the deceased's children.

The OP should ask her attorney for clarification and the reasoning.

#10 SamIAM0909

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Posted 18 January 2013 - 07:38 AM

Thank you all. Maybe I didn't get it because that's not what I wanted to hear. I hear what your saying, I just don't agree that the state gets to decide the fate of my house. I realize he should of had a will, he was only 49. I would have liked to sell the house and purchase a smaller one now that it's only me.

thank you again.




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