Legal Question in Wills and Trusts in Massachusetts

Re: Dad Didn't Do a Will

It will depend on the tenancy. Did your folks own it as "joint tenants" or "tenants by the entirety"? Assuming that they did, then the house will, by operation of law, go directly to your Mom. The mortgage thing is another question. An attorney would need to review the signed Note & Mortgage to determine her liability. If she didn't sign the note or mortgage then you may be able to have it discharged without paying anything.

Re: Dad Didn't Do a Will

If the deed is into your parents as "tenants by the entirety" or "joint tenants," your mother owns the house as of the date of your father's death. Only if they owned it as "tenants in common" does it matter how your father's estate passes under the MA law of intestacy. It should say on the deed whether they owned as tenants by the entirety, joint tenants, or tenants in common. If you determine that your mother owns the house, the mortgage company should talk to her. Point out to them that the house is hers and tell them that if they want their money, they'd better talk to your mother. Your mother should call the company and ask to speak to a supervisor if they keep giving her the runaround.

If your parents owned the house as tenants in common, it will be somewhat more difficult to straighten things out; if that's the case, please e-mail me directly and I'll suggest how best to proceed. But it's most likely that they owned it as tenants by the entirety, so you shouldn't have much of a problem.

Rand Hutcheson

Re: Dad Didn't Do a Will

First, you and your siblings can decline any interest in the home so it passes your mother.

Second, you need to look at the deed to the home, if it is in both your mother and father's name as tenants by the entireties, then the home will automatically go to your mother.

If not, then probate needs to be opened,, if it has not been done so far. She can be appointed executor of the estate of your father with the consent of the children. once she is appointed executor she can get a court order making her the person to whom the Mortgage company has to deal. She may need to refinance since she is not a signatory to the note.

Notwithstanding this, she can make principal payments on the Mortgage.

I would suggest she contact an attorney who handles probate matters ASAP.

Please feel free to contact me without obligation.

Re: Dad Didn't Do a Will

I strongly suggest that you consult with a probate attorney. There are too many uncertainties in what you stated in order to give a definitive answer.

A few general propositions- normally, husband and wife take as "tenants by the entirety", or "joint tenants by right of survivorship", which means that the surviving spouse receives the house by operation of law upon death of the first spouse. It is more the exception than the rule for husband and wife to take as "tenants in common." So, it is important to know what exact language is on the deed.

Secondly, if life insurance is payable to a surviving spouse, and in the absence of a taxable estate (more than $1,000,000 without reduction for mortgages, etcetera), things would be fairly straightforward, and an attorney could, in short order, assist in completing the necessary steps without significant costs.

If the estate is taxable (actually, not exactly taxable, but requiring the filing of an estate tax return, even if no tax is due), it would be more complicated, but even more important to consult with an attorney.

The description of the refinance also raises certain questions, including why, if the property were held as a tenancy by the entirety, your mother was not involved.

As far as "disclaiming," as another response suggested, that may not be an option as it is "normally" limited to nine months after the date of death, and if any of the adult children who would disclaim have their own children, their share would not pass to the mother-grandmother, but rather to the grandchildren of that child.

Finally, there may be some estate planning issues that your mother should be considering as she decides what to do. Paying off the mortgage would not be complicated, but it might not be the best thing to do under the circumstances, especially if your mother may need the cash in the near future. You are strongly advised to speak with an attorney.

Please feel free to contact my office if you would like to set up an appointment.