Legal Question in Wills and Trusts in Massachusetts
Can heirs refuse to to process an estate?
Scenario: Mr. X died without a will. His wife had died before him and he has two sons, both living. His only asset was his house, which is fully paid off and has no liens. Presumably the house passes to his two sons, his only descendants. Son A has lived in the house for the last twenty years and continues to live there after Mr. X's death. Son B lives elsewhere and is not interested in collecting money for his share of the house at this time but he does wish to retain his piece of the ownership. Can the sons just ''sit on'' the property and leave it in the now-dead father's name? Or must they purchase it from the estate? Is there any legal process that forces them to follow through or could they just ignore the whole situation, continue to pay the taxes, and never change the ownership? What would be the consequences of doing so?
3 Answers from Attorneys
Re: Can heirs refuse to to process an estate?
If Mr. X did in fact die intestate (without a Will) then the property by operation of law automatically is vested in the legal heirs which I assume, based on these facts, are the two sons. There is no buying or transferring from the estate, because the property has already by law transferred to them. That being said, a probate file still needs to be opened up, with the sons named as the heirs, because that is the only way anyone would know they are the rightful owners. There is no immediate rush to do this, but it should be done to prepare the title for future transfers, mortgages, etc. Also, if there is other probate property owned by Mr. X then a probate file will need to be opened up anyways.
Re: Can heirs refuse to to process an estate?
The heirs should open and estate and transfer title into the names of both sons. No purchase is required.
There may be some inheritance tax although it would depend on the value at date of death, not for Federal but MA tax.
Re: Can heirs refuse to to process an estate?
The short answer to the question of whether intestate heirs can simply delay probating the estate is, "yes."
Are there consequences? Potentially, but of course it would depend upon the circumstances.
The first question, is whether there are any unpaid creditors. If there are, the creditors could in theory arrange for the estate to be probated so that they could receive amounts due, potentially forcing the sale of the real estate under certain circumstances.
If there are no unpaid creditors, it is a bit different. If the estate exceeds a certain gross amount (all assets, including real estate) at the time of death, including property in other states, if any, there could be Massachusetts and or federal estate taxes due. (Massachusetts no longer has an inheritance tax.)
It would be helpful to have a contemporaneous appraisal of the house and estate assets, if any, to be sure that no tax is due, otherwise interest and penalties could accrue, assume the estate tax threshold is exceeded.
As noted elsewhere, upon death, and in the absence of the need to liquidate the estate real estate to pay creditors or taxes, the real estate passes to the heirs at death. However, future purchasers will want to be sure that there is no estate tax due, albeit an affidavit to that effect could be provided by the heirs who are then selling the property, along with related documents.
It is also possible to cut off claims against the property, assuming none are brought during the probate of the estate.
One issue is who is entitled to growth in the value of the property, especially if one heir is paying all carrying costs, paying for improvements, etcetera.
Problems could arise, though not necessarily insurmountable problems.
They would be wise to consult with legal counsel, but as long as they are aware of the risks...
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