The Elrod Firm

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How Can We Keep This Out of Probate?

Justin, my dad recently passed away, and my mom has been hit with a surprise that we don’t know how to handle. She recently received word from the tax assessor that her house is not, and never was, in her name. Apparently, when my dad purchased it decades ago, the title company put it in his name only. I always thought that when a husband died, all his property automatically passed to his wife, but now I’m being told that’s not right and she needs a probate. What can we do to keep the house out of probate? – Steve

Steve, I’m sorry to hear about your father’s passing, and I’m sorry that your mother is running into these legal troubles on top of that. Unfortunately, it is unlikely that we’ll be able to do anything to keep the house out of probate if it was only in your father’s name when he died. Even though he left a spouse, and common sense would tell you the house should automatically be hers, that’s not how the law works.

Anytime a person dies with property in his or her own name, with no co-owners and no death beneficiaries listed, that property must pass through probate no matter what his or her family situation may have been. You didn’t mention whether your father had a will, but even if he did, having a last will and testament doesn’t keep a person’s estate out of probate – it simply guides the probate court in wrapping up final affairs. It would have been ideal for your parents to have jointly owned this home, but even that would not have been enough to permanently keep the house out of probate. At your mother’s death, you would still have faced probate court without additional planning.

Are you in a similar situation?

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