How can brother & I transfer our 50% share of property as heirs by lineal descendant to mom so she's 100% owner& place in trust
3 attorney answers
You got two good answers to start but, unfortunately, it's even more complicated. If your father died in NY, and if he was a NY resident, you have to do an ancillary probate in Florida. That means you first have to do the probate in NY. Then the Florida court will acknowledge what the NY court determined, that you two are the heirs. That's if he didn't leave a will to the contrary. Further, I trust there were no creditors. In Florida, creditors have no claim after the person is dead for two years, but I don't know the rules in NY. So the first issue is to determine if he was a NY resident when he died. So you might very well need two lawyers, not just one.
I practice only in Florida. So my comments are only applicable to situations involving Florida law. In general, the laws of other states are similar, but there is no guarantee of this. It is advised that you consult a lawyer who practices in the state where the issues have arisen.
This will require a probate proceeding to establish your inheritance of your father's share of the home. There are a lot of additional facts required which need to be discussed with a probate attorney, but assuming the home is in Florida there is no will and you and your brother are his only children, your father's interest in the home must first be awarded to you in a probate proceeding (probably a Summary Administration). You can then either deed the home to your mother, or the two of you as heirs to your father's estate and your mother can deed all of your shares in the home to a revocable trust she establishes as grantor, where she is named as the initial beneficiary. Whether you want to do this, or just deed the home to your mother, is one of several issues to discuss with an experienced probate and estate planning attorney as there are many complex issues which you cannot handle properly (and handled improperly will create property title issues) without the assistance of an experienced attorney.
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From the written fact pattern, you would have to do a probate proceeding in FL for your father’s estate to get the property out of his estate and into your names. Once you and your brother own his share of the property, then you can quitclaim deed the property to your mother. The good news is that this likely could be a summary administration since the date of death was over 2 years ago.
Caveat: A probate attorney would have to first look at all the relevant deeds, the Final Divorce Judgment, and any NY probate paperwork to be sure the above procedure would work.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, and who is licensed as an attorney in the state where the law applies.