Legal Question in Wills and Trusts in Utah
Home Deed and Probate Law
My parents divorced and my father re-married. Before my dad's death(5 yrs ago) he & his 2nd wife were married for nrly 28 yrs. His 2nd wife has 5 kids (4 lvg)they're now all adults/married. My dad didn't legally adopt her children. My brother&I are his only lvg children.Dad bought his home in 1974 before he re-married & once married this is where they lived. Currently the property deed lists his name & next to his name it states ''as a single man.'' My Dad & his 2nd wife had a trust,(apparantly no will..(?)the deed wasn't ever chgd to the title of the trust. Now she plans to sell the home. Does ownership auto. roll to the trust or does it remain in just his name & must be probated? My dad told ea of us that there was apart of his estate that his 2nd wife could nvr touch,that would be protected for us (his children). Unfortunately, it was an uncomfortable subject to discuss so we didn't ask for details, we thought all wld be well. His 2nd wife hasn't shared a copy of the trust, or much of anything with us, but has given her own children quite a bit of our dad's belongings. We just want what our dad intended for us to have. Nothing more. The attorney that drew up the trust no longer has a copy. Pls advise! Thank you for your time.
2 Answers from Attorneys
Re: Home Deed and Probate Law
If your dad's name was the only name on the deed and the house was never transferred to the trust, your step-mother cannot sell the house. First she will have to go through probate, be appointed personal representative by the court, and then sell the house. Any proceeds will have to be made according to the intestate statute, unless your step-mother can provide a will. Because you are potential heirs, you will have to be notified of any probate proceeding filed. However, I would probably go ahead and check with the local probate court to see if anything has been filed. If you step-mother carries the contract on the house, she may find a buyer who is willing to buy it without title insurance. However, I don't believe any mortgage company will issue a loan without your step-mother clearing title by going through probate. If you need assistance, please contact me for more detail.
Re: Home Deed and Probate Law
If the property is not titled in the name of the trust, stepmom cannot sell the property. The property does not automatically go to the trust. (Without any property titled in the name of the trust, the trust has little value or effect.) It would have to go to probate. You should see if probate has been opened in the county where they lived. If not open, you file probate and initiate the action to get your share of your father's estate - possibly including stuff she gave to her children. If it has been opened (you should have been notified) you will have to plead your case in that action. You should not wait, as time is against you. You may call for a free consultation.
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