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No will means state laws will govern who gets house

Dear Benny: My mother and her boyfriend lived together for 18 years. He owned the house by himself. He has two surviving adult children.

My mother’s boyfriend recently died of a massive heart attack and did not have a will. His son now shows up and is trying to have my mom evicted from her home and take all the contents.

Does my mom have any rights to her house and the contents? –Tonia

Dear Tonia: You need to consult with an attorney immediately.

From a legal point of view, since your mother’s boyfriend did not have a last will and testament, the laws in your state will control who gets the house.

These laws are called “the laws of intestacy,” meaning that in the absence of a will, the law dictates how the property of the deceased is distributed. Generally speaking, immediate relatives — a wife or children — will inherit.

However, regardless of whether there was a will, in most states his estate has to go through probate. That would give your mother an opportunity to explain to the probate judge the situation.

While I doubt that your mother will end up owning the house, the court may (1) allow her to live there the rest of her life; (2) give her plenty of time to move out, and/or (3) allow her to be reimbursed for some of the moneys she spent taking care of the house.

In the District of Columbia, where I practice law, there is a concept called “common law marriage.” That means that if man and woman live together for a long period of time and hold themselves out to the public as being married, the court will consider them married.

Dear Benny: My husband passed away recently. I need to know what to do and where to go to have his name taken off the title to our house. –Marcia

Dear Marcia: First, you state that the property was titled in both your names. I need to know exactly how title was held.

There are three ways:

  • Tenants by the entirety: This is reserved for husband and wife. When one spouse dies, the survivor is the owner and no probate is required;
  • Joint tenants with rights of survivorship: While this can be used by husband and wife, usually it is used by nonmarried people. Again, when one of the owners die, the survivor becomes the owner (by operation of law) and probate is not necessary; and
  • Tenants in common: If this is how title was held, on the death of one person, his/her interest goes by way of a last will and testament, and usually probate is required.

Most husbands and wives hold title as tenants by the entirety, so my answer is based on that assumption. As indicated, when your husband died, the property automatically went into your name.

I understand you would like to take his name off of the title, but it really is not necessary. Should you ever want to sell, so long as (1) title was in tenants by the entirety, which can be determined by looking at the land records, and (2) you have a death certificate showing that your husband died, you will not have a problem selling.

But if it is important for any reason to put title in your own name, all you have to do is go down to the office of the recorder of deeds and show him/her the death certificate. From my experience, most recorders of deeds will assist you.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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