What are the rights of the son to the land owned by their father who died without a will? 19 Answers as of January 07, 2014

I am trying to find out some information for my significant other. His father passed suddenly and there was no will. The deceased has two sons who are in agreement to share the land but the deceased party is on the deed with his mother, who is still alive. The title states the deceased has ownership rights but the mother retains "life use". The deceased's brother has power of attorney for her since she is not fit of mind to make decisions and the brother of the deceased is trying to take the land from the two sons. If brought to court, will the two sons have a chance? Can the brother change the title to exclude the deceased or since he passed before the mother. Will it matter?

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Ronald Main & Associates | Tracian M. Laignel
It sounds to me like the boys' mother has what is called a "life estate" or she has the ability to use the property for life. When she passes her interest in the property is no more. Therefore the property belongs solely to the boys at that time. The mother's guardian may try as he may but he cannot "take" the property and sell it. The mother has no right other than the life estate which is mere possession/residence. She may be responsible for upkeep on the property and payment of taxes, I am unsure specifically what the laws are. However, if she wanted to do improvements she would need permission from the boys first. Good luck, probate is never pleasant!
Answer Applies to: Oklahoma
Replied: 1/7/2014
LAW OFFICE OF ROBERT I LONG
LAW OFFICE OF ROBERT I LONG | Robert I. Long
From what you describe, it sounds like mom gets use of the property until she vacates it with no intent to return to it, at which time the two sons will have rights in it. In California, the brothers would be advised to probate dad's estate to establish their rights in the property, not only for after mom passes but their presently held rights as remainderpersons (e.g., to prevent waste).
Answer Applies to: California
Replied: 1/6/2014
Estrada Law P.C. | Michele Ungvarsky
I urge you to contact an Estate Planning attorney. There are provisions for passing possessions without a will in every state; it is called intestate administration of the estate. Generally the spouse and children of a deceased person have priority in the distribution of the assets, the percentages and details are slightly different in each state.
Answer Applies to: New Mexico
Replied: 1/6/2014
Frederick & Frederick PLC | James P Frederick
Too many questions and not enough information to say for sure. It all depends on the deed. If the title gives the mother a life estate, then she has the right to stay there or rent the property during her lifetime and the uncle can act on her behalf, under the POA. He cannot change the title, however, and there is no way I can see him either bringing it to court or winning. If this is a battle, however, your friend needs to retain an attorney to help him protect his rights.
Answer Applies to: Michigan
Replied: 1/6/2014
James Law Group
James Law Group | Christine James
Show the title to an attorney. Likely the brothers will have to wait until the grandmother dies before they get the property, but it is impossible to say without seeing the deed.
Answer Applies to: California
Replied: 1/6/2014
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    1. Power of atty. dies with the decedent. 2. Examination of the deed is required. Sounds as if the spouse gets it for life.
    Answer Applies to: California
    Replied: 1/6/2014
    Gates' Law, PLLC | Thomas E. Gates
    When dying without a will, one dies intestate. Since there is not a surviving spouse, the estate is divided in equal shares to his children. Here, you own your dad's half interest in the land. Your grandmother's interest survives until her death and then you and your brother will own the remaining half. You need to probate your dad's estate so that the title can be changed into your names. Retain a probate attorney to assist you.
    Answer Applies to: Washington
    Replied: 1/6/2014
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    Good questions. The title to the land will generally control the ownership. If the surviving spouse has a life estate, she has the use of the property during her life. At her death, it goes to whoever is identified as the future interest on the Deed. If none, it goes to the heirs of the deceased. By the way, the surviving spouse will have a claim against her estate for any Medicaid payments made on her behalf that can be devastating.
    Answer Applies to: Oregon
    Replied: 1/6/2014
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    I assume what is happening is that brother wants to sell the property to pay for mom's living expense but this is an abuse of the power of attorney for the mother since she only has a life estate in the property and there is nothing that can be done by him to take the remainder interest away from the 2 sons. Please contact an attorney.
    Answer Applies to: Michigan
    Replied: 1/6/2014
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    "The title states the deceased has ownership rights but the mother retains 'life use'." It is not clear what you mean and is quite unusual. I'd like to see the actual document. In any event, the power of attorney ordinarily does not include a right to make gifts. It also does not include a right to change the widow's will or to make one for her. Was this community property? If so, it probably goes completely to the widow. If the decedent's interest was his separate property, then that goes one-third to the widow and one-third each to his children.
    Answer Applies to: California
    Replied: 1/6/2014
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    Suggested you obtain the services of a probate lawyer for your husband/significant other to advise you, as I do not have the document to review. Sounds like the mother retains a life estate in the property, regardless of the distribution designated by the court. don't let the person holding the Power of Attorney buffalo you.as the power of attorney is limited to general financial transaction and not to specific real property transaction. DO NOT DELAY.
    Answer Applies to: California
    Replied: 1/6/2014
    Law Office of Pamela Braynon | Pamela Y. Braynon
    The mother will have use of the land for her life. Once she passes away, the two sons will share the property equally. The uncle has no say so in the matter unless his name is on the title somehow.
    Answer Applies to: Florida
    Replied: 1/6/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    From what you say, the decedent owned a piece of land in fee siimple and gave his mother the right to live on and use the premises for the rest of her life. The decedent's brother has power of attorney for their mother (I assume financial POA). After the mother dies, the heirs of the decedent (established by the intestacy laws of the state) should inherit the land in fee simple. The decedent's brother should have no right or authority to change the title to the property. However, if the decedent inherited the property, there may be conditions attached to the property ownership that will also impact the inheritance.
    Answer Applies to: Nebraska
    Replied: 1/6/2014
    Kosloff & Greenwood
    Kosloff & Greenwood | Oliver Greenwood
    The brothers have a chance at what, not sure, but I am certain they have one. Mom has a life estate, it is hers until she dies, so you have to wait until she dies for the title to pass to you two.
    Answer Applies to: California
    Replied: 1/6/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    The ownership interest stated on the deed is critical. If the terminology of the conveyance created a life interest ("life use?") in the wife then the remainder interest (the property after the wife dies) is in the father's estate. The mother would not be able to sell the remainder interest because she does not own it. The mother can only sell the use of the property for as long as the mother is alive. Since there is no will, the distribution of the father's estate will be determined by the statute on descent and distribution. Where the wife is alive and there are children, the estate will be distributed ? to the wife and ? divided amongst the children with any descendants of a deceased child dividing the deceased child's share. This means the wife has an interest in the property by virtue of the remainder interest being part of the estate and subject to distribution. The remainder interest may have to be sold if there are insufficient other assets to allow for the distribution of the wife's share of the estate without such a sale.
    Answer Applies to: Illinois
    Replied: 1/6/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    To really answer the question, a lawyer would need to look at the deed. It sounds like there was a deed from mother to deceased son, with mother reserving a life estate. That would make deceased son the owner, subject to mother's right to live on the property while she is alive. It would be weird for mother to have given power of attorney to one brother, while deeding property to another, but people do very strange things when they do estate planning without legal assistance. Assuming mother did not use a "transfer on death" deed (which would be extremely bizarre with a life estate, but, again, nothing surprises me any more) then her transfer of the property to deceased brother is a done deal, and could not be changed now by her agent under a power of attorney. But what's this property worth, somewhere in the six-figure range, right? For pity's sake, hire a lawyer and get things straightened out once and for all. Your rights under the law aren't worth anything if you don't take the right steps to enforce them. Don't save a few hundred bucks and lose a hundred grand.
    Answer Applies to: Oregon
    Replied: 1/6/2014
    Danville Law Group | Scott Jordan
    Mom has a life estate in the property, which means she can use it for her life. However, she does not own the property and she cannot sell it (or anyone on her behalf). The two siblings are heirs to the property. They need to file probate for the estate to establish their ownership rights. They should act quickly to avoid any unnecessary entanglements with the uncle. They should contact a local probate attorney for immediate assistance.
    Answer Applies to: California
    Replied: 1/6/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Your significant other has to get an attorney and go through the details with him or her. It sounds like mom has life-estate, but mom may also have inheritance rights as well unless the deed names the brothers as the remainder-men. The only person that can help is a local attorney.
    Answer Applies to: Idaho
    Replied: 1/6/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    A attorney should look at the exact titling of the deed to advise you.
    Answer Applies to: Nevada
    Replied: 1/6/2014
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