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silknspers

will and property

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     My father in law died approx. 5 years ago and my husband and him owned a piece of property together. The will was read the executor was named which was his bother.

     The will stated that the half ownership of the property that his father had been a part of was to go to the brother. No deed has been changed since the death and we are now looking in to parting with the property, or my husband is preparing his own will and wants to give his half to me upon his death. We have tried to contact his brother with no response to find out what is going on with it. My question is after all this time is it my husband is now sole owner of the property? can we just add my name to the deed? or even sell the property if we so choose to? and help would be great we are at a lose trying to get information... I have looked up the deed today and it still haven't been changed.

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How, exactly, does the ownership on the deed read?

 

That's critical.

 

You can put blanks where the names are but quote the exact wording.

 

I suggest you also visit the probate court where the will was probated and get a copy of the complete case file so you can determine if anything has happened so far. That's also critical and you can summarize it for us.

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     My father in law died approx. 5 years ago and my husband and him owned a piece of property together.

 

How did your husband and his father hold the joint title?  As tenants in common?  as joint tenants?  Something else?  In what state is the property located?

 

 

 

we are now looking in to parting with the property, or my husband is preparing his own will and wants to give his half to me upon his death.

 

Well...which is it?

 

 

 

We have tried to contact his brother with no response to find out what is going on with it.

 

Why do you think this is necessary?  And how is it that your husband (apparently) has no idea what happened or is happening with the probate of his own father's estate?

 

 

 

My question is after all this time is it my husband is now sole owner of the property?

 

The only way your husband would be the sole owner of the property is if he and his father held title as joint tenants with the right of survivorship.  If that is the case, then, as a matter of law, his father's interest passed to him upon death.  Obviously, that has nothing to do with the passage of any time.

 

 

 

can we just add my name to the deed?

 

One does not add a name to an existing deed.  Your husband is free, however, to sign and record/file a deed that grants some or all of his interest in the property to you.

 

 

 

or even sell the property if we so choose to?

 

Your husband can only sell his interest in the property.  If he owns the whole thing, then he can sell the whole thing.  If he only owns a portion, he can sell only that portion, but he is likely to have a difficult time finding a buyer who will want to pay anything close to half of the fair market value to co-own the property with his father's estate or his brother.

 

 

 

I have looked up the deed today and it still haven't been changed.

 

As mentioned above, deeds don't change, so "look[ing] up the deed" by which your husband and his father acquired title may or may not be sufficient to tell you who currently owns the property.

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If your husband and his dad owned a separate interest as tenants in common (deed may not actually state TIC), then it's unclear why you need to hear from the uncle about anything.  Your husband is free to leave his half to you in a will, or even add your name as to his half of the property with him as joint tenants w/ right of survivorship. [1]

 

"My question is after all this time is it my husband is now sole owner of the property?"

As worded, you seem to be asking whether the mere passage of time since FIL's death accords your husband any more rights to the property than a half interest.  Answer would be "no".

 

"can we just add my name to the deed?"

See above (yes, your husband can add you as a joint tenant as it relates to his half interest). 

 

Your husband's free to sell his interest in the property, but if it's just a half-interest in property, who knows who may want to buy it.  Has he bothered to ask his uncle whether the uncle is interested in his share?[2]

 

 " I have looked up the deed today and it still haven't been changed."

Whaddya mean by "looked up" ... that is, unless you mean to say you've gone to the land records office and managed to get copies of ALL the deeds going back to when your FIL and husband became co-owners.

 

 

[1] Unless you live in Texas, that's good enough to ensure you get the entire half interest by default/operation of the deed if your husband dies, outside of any probate estate.

 

[2]  As suggested elsewhere, for all we know, your FIL and husband owned as joint tenants w/ right of survivorship and your husband became sole owner when his father died.  You'd look for language in the deed mentioning this; otherwise, the law will default to tenants in common, with each owning a separate interest (presumed to be 50/50 unless the deed stated otherwise).

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     My father in law died approx. 5 years ago and my husband and him owned a piece of property together. The will was read the executor was named which was his bother.

     The will stated that the half ownership of the property that his father had been a part of was to go to the brother. No deed has been changed since the death and we are now looking in to parting with the property, or my husband is preparing his own will and wants to give his half to me upon his death. We have tried to contact his brother with no response to find out what is going on with it. My question is after all this time is it my husband is now sole owner of the property? can we just add my name to the deed? or even sell the property if we so choose to? and help would be great we are at a lose trying to get information... I have looked up the deed today and it still haven't been changed.

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ok I looked up the deed today also to give you more information its a warrenty deed for consideration paid, grant *****My husbands name and then his fathers name*****  they are warrenty covenant, tenants in common then the description on the property. My husbands name was first then his fathers..

 

 

In that case, follow adjusterjack's advice to check with the probate court to determine what has and what has not occurred.

 

The sequence of the names is not relevant.

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Hi silknspers,

 

So unlike in a joint tenancy -- where your FIL's interest is automatically transferred to your husband, leaving him with 100% interest in the property-- in a tenancy in common, your husband retains his interest in the property, and your FIL's interest goes to the brother. Therefore, your husband is not the sole owner of the property -- and at this point, cannot convey full ownership of the property to you upon his death. To read more about the difference between joint tenancy and tenancy in common click here.

 

To be sure, though, I'd strongly advise your husband have an attorney review the deed and draft up a will to ensure his interest in the property is properly conveyed to you upon his death. You can find a number of qualified estate attorneys through FindLaw's lawyer directory. Good luck!

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Hi silknspers,

 

So unlike in a joint tenancy -- where your FIL's interest is automatically transferred to your husband, leaving him with 100% interest in the property-- in a tenancy in common, your husband retains his interest in the property, and your FIL's interest goes to the brother. Therefore, your husband is not the sole owner of the property -- and at this point, cannot convey full ownership of the property to you upon his death. To read more about the difference between joint tenancy and tenancy in common click here.

 

To be sure, though, I'd strongly advise your husband have an attorney review the deed and draft up a will to ensure his interest in the property is properly conveyed to you upon his death. You can find a number of qualified estate attorneys through FindLaw's lawyer directory. Good luck!

 

 

 

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How did your husband and his father hold the joint title?  As tenants in common?  as joint tenants?  Something else?  In what state is the property located?

 

 

 

 

Well...which is it?

 

 

 

 

Why do you think this is necessary?  And how is it that your husband (apparently) has no idea what happened or is happening with the probate of his own father's estate?

 

 

 

 

The only way your husband would be the sole owner of the property is if he and his father held title as joint tenants with the right of survivorship.  If that is the case, then, as a matter of law, his father's interest passed to him upon death.  Obviously, that has nothing to do with the passage of any time.

 

 

 

 

One does not add a name to an existing deed.  Your husband is free, however, to sign and record/file a deed that grants some or all of his interest in the property to you.

 

 

 

 

Your husband can only sell his interest in the property.  If he owns the whole thing, then he can sell the whole thing.  If he only owns a portion, he can sell only that portion, but he is likely to have a difficult time finding a buyer who will want to pay anything close to half of the fair market value to co-own the property with his father's estate or his brother.

 

 

 

 

As mentioned above, deeds don't change, so "look[ing] up the deed" by which your husband and his father acquired title may or may not be sufficient to tell you who currently owns the property. we don't know what is happening in the estate because as I said the brother is in another state, after trying to get in touch with him and no response, I found this site when our questions couldn't be answered, by our own means. my husband doesn't want to sell the property he bought with his dad and wants to keep it. He has offered to buy out the brother with a "NO sell response from him"  our thoughts were that we wanted to keep it for our children but want to have a clear deed and not knowing if the brothers name needed to be added and fathers name removed it tends to get confusing to us. our registry of deeds here is online I keep checking to see if it has changed in anyway and so far no changes have been done .. we have the original deed here at home. I did call a lawyer at one point told them the names he said that the will was never filled. I don't know what this means either... the lawyer said that we would have to have the uncle remover and a  new one choosen to get this all cleared up You all are my last resort.... before that happens

 

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"we were told that because his brother hasn't gone and added his name to the deed and removed his dad. that the deed is now only my ex husbands name"

I don't know who you talked to, but evidently the ownership of the property is unchanged.  It may be in your unnamed state that the will itself can act as a transfer document of ownership interest.  Can't know from here. 

 

At any rate, if a valid will indicates that your husband's uncle is to receive the half-interest owned by the father, it is what it is.  If uncle never bothered to probate the estate/file the will with the relevant local court (you don't say what the status is of that), given the time that's elapsed, either now or later (particularly if uncle kicks the bucket without addressing), whomever is his heir or in charge of administering HIS estate will likely need to initiate a quiet title action to settle the matter of his estate owning half-interest in the property.

The uncle's interest in the property doesn't affect your husband's.  See prior response(s). 

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silk, you really need to not add your own new comments within a quote from other folks.  It's very difficult to ascertain what's your comment and what's part of the quoted comment.

Belatedly, apologies for thinking you meant the father's brother v. your husband's brother.

 

Your husband or you can check with the probate court in the state where his father was a resident when he died.

 

If your husband's doesn't want to sell his interest, it is what it is.  Your husband has the option if he does NOT want to co-own with brother and brother refuses to sell his interest to your husband to petition a court to order a partition or sale of the property.  If it's a piece of land that's divisible into essentially equal value porrtions, a court might order a subdivision.  Costs of that would likely be considerable.

 

"our registry of deeds here is online ..."

Unless this registry includes copies of relevant deeds v. informational blurbs, someone would need to search the title.

 

"... we have the original deed here at home."

Ruh-roh.  The original deed is supposed to be among the land records.

 

Not sure what you mean by people who view posts on a community message board being a "last resort".  :) 

 

In any state I know of, probate wouldn't be possible for a will that relates to a death from five years earlier.  There's nothing really to straighten out, unless the property is of a size that's divisible and your husband is ok with that option. 

If husband wants to know more, he should consult with a real estate attorney in the relevant state (of property).

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Didn't  mean to be confusing just found your site today, getting used to using it. You all have helped me a lot . We were thinking that when someone dies and property is willed so someone else all or a portion, that a new or updated deed would be sent to us to let us know that is was done.. We pay our taxes in our towns here, towns are very small the clerk also said that she would remove his fathers name for him and he declined it wasn't his place he wasn't the exec.. of the estate. my husbands brother is.... The one we have tried to contact to check making sure all paperwork was in order after their fathers passing. With no responses we live in maine and they are in mass. so the travel is long. I was told by a lawyer I called, give him the names of all the guys involved that the will wasn't filed? don't know what that part means. we have been left out of a very large loop unfortunately :(

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It appears from the comments made above by others that your husband and his father owned the property as tenants in common.  Beyond that, your follow up posts don't really appear to have addressed any of the other points that I made.

 

Since the property was owned as tenants in common, your father-in-law's interest in the property passes according to the terms of his will.  Depending on the specifics of the applicable state law and on whether or not your father-in-law's estate was properly probated, that means either that the estate owns the property jointly with your husband or that your husband and his uncle now jointly own the property.  As I mentioned previously, your husband is free to convey any or all of his interest in the property to you.  He can try to sell his interest, but it probably isn't marketable to anyone other than his uncle (i.e., the only way he's likely to sell it for anything approaching 50% of fair market value is if his uncle buys him out).

 

 

 

we live in maine and they are in mass. so the travel is long.

 

There's no real need for you to travel, and getting from just about anywhere in ME to just about anywhere in MA is possible in less than a day's drive.

 

 

 

In any state I know of, probate wouldn't be possible for a will that relates to a death from five years earlier.

 

I second "harrylime's" "Huh?" comment.

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How about you paying for a title status report from a

local title insurance company concerning the real

estate?   

 

And who's paying the real estate taxes on it or are

the real estate taxes not being paid by your husband?

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