Fixing House Inheritances

Video

Hi folks, it’s Andy Stautz at Stautz Law. I am back with another… I guess it’s an estate administration topic. This one’s kind of an oddball and it’s not going to be my most focused talk ever, but it comes up so much. And the question is: how do I get the house? How do I fix the house?  

Scenarios: Houses Left in Old Title

And the scenario that comes up over and over is, oh, my grandma, you know, owned the family farm and she died and so and so’s name is still on the title, but he’s gone. And you know my cousin’s living there.  

All of these situations where there’s there’s some property (real estate always, you know we’re not talking about personal property here). There’s some real estate, there’s some house and it’s still titled in someone’s name who’s gone. And the question is OK. How do we how do we bring it up to date? What happens, you know?  

A lot of times this happens when either there’s a mortgage or there are taxes, and something changes there. 

In theory when someone dies the personal representative, if there’s an estate administration, or the beneficiary if there’s a transfer on death deed, maybe, needs to assume the mortgage and let the bank know that someone else is paying the mortgage. Same thing with taxes, right? Like in theory, you should get it passed down and make sure that the person who says they’re paying taxes, is the one actually paying taxes.  

Obviously, that doesn’t always happen, right? So you’ve got people who are paying the mortgage in a dead person’s name or paying taxes in a dead person’s name. Which is not a huge deal as long as things are getting paid… Most people are usually willing to just kind of let it slide, but if there’s a change in circumstances, that’s when it comes up. Or someone stops paying the taxes and now there’s a foreclosure sale or a tax sale.  

Solutions to Broken Inheritance

So can can you fix it? Usually, yeah. Usually, yeah. It just kind of depends on different factors. 

1. Probate a Will for Specific Asset

For example, if there’s a will, that’s great. Usually the rule is you have to probate A will within three years of a death. Now sometimes these cases come to me a little way after. Fortunately, there’s an escape hatch in the Indiana Code that says, oh, by the way, though, you can probate a will specifically to clear title or pass titles of something that’s still titled in the decedent’s name… which is perfectly this situation, right? We’ve got a house. It’s still titled in someone’s name. They died five years ago. It’s like, OK, we’re past the three-year limit, but we can still introduce a will if there is one to say “here’s how it needs to go.”  

[Edit: that code provision is IC 29-1-7-15.1(h)] 

2. Survivorship Affidavits

Sort of similar for survivorship affidavits. So if there’s a joint titling situation and you need to resolve who got the property by survivorship, you can file a survivorship affidavit. As far as I can tell, uh, you know, there’s not right in the statute a limitation on when you can do that.  

And sometimes it happens years later, sometimes you need to do a survivorship affidavit to clear up a joint title situation. And then a probate.  

You can kind of stack these methods.  

3. Devolution Affidavits

The other technique which probably deserves a whole talk of its own, is, uh, what’s called a devolution affidavit. And this is basically a deed that you can do without a probate administration. And it’s supposed to show the title to the real estate passed.  

Problem is, if it passes by will there’s another clause in the probate code that says you can’t. You have to probate the will for it to be effective, [citation: IC 29-1-7-24] so arguably that means you need to do the probate of will for specific asset.  

In intestacy, you don’t necessarily need to do that. You’re just still, you know, depending on your title company, some title companies take the position there’s still a cloud on the title because until there’s been an administration. The property is, you know, subject to possession of the of the personal representative. And again, that gets arguable, but it’s something to consider.  

So that’s just a bunch of considerations. This is really a problem solving area, so if there’s a house and it’s titled in the wrong person’s name and you’re wondering who gets it or whether you can get it, it just depends on the facts and it depends on what intestacy rules say, what the will says, if there’s a will, you know, other heirs and it’s kind of… it’s problem solving. You know you use these different techniques to try to make sure it goes in the right place which can be really fun.  

You just don’t know how it’s going to turn out until you get advice for your situation. So if you’re dealing with something like that, give me a call. Love working on these cases and I hope this talk has been helpful. It’s kind of a general overview of what’s possible. Thanks. Bye.