My father in law passed away about 3 years ago. He passed away in Ca. with no will or living trust. The only asset is his home that my husband has been living in, and making the mortgage payments on. He is not, on the mortgage though, but continues to make the payments. We are currently looking for an attorney to assist in the transfer of the property, but what kind of penalties, are we looking at ,having put this off for so long?
Unless there is state or federal estate tax due (which sounds doubtful from your description), there is not likely to be any penalty. If he had no will or trust, there was no living person who had a duty to open an estate.
The kind of attorney who can help you with this is a probate attorney. If your husband was his father's only child and he had no spouse, it is probably the case that your state's intestate succession law would cause whatever assets he had after payment of his debts to be distributed to your husband. However, one thing to be careful of is the mortgage. While it may say that it is due in full upon the death of the borrower, in truth most lenders do not care about enforcing this, so long as the payments are getting made when due. It would be worth checking to ascertain if he is prevented in the estate administration from leaving the mortgage in place. Those states I am familiar with do not care.
To transfer title, the house must be probated. You need to contact a qualified probate attorney to accomplish this. Feel free to call me with any questions.
There are no probate court penalties for delaying administration, and I have done some probate cases where the death was decades ago. However, there is a deadline for claiming the exclusion from County property tax reassessment under Proposition 13. After about three years, you can claim the exemption from then on, but you can't reduce past higher property tax bills or get refunds of higher property taxes you paid. Your property tax bills probably went up when the County learned of the death through Health Department records, unless you filed for the exemption. If you haven't done that, you should do it right away.
You will need to transfer title tot eh house through a probate proceeeding, but since it's your residence it shouldn't affect the mortgage or require refinancing. If there are other brothers and sisters, though, he will have to deal with their potential interests in the house.
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