When my dad remarried he never changed the deed into his new wifes name,he left the same with my mom's name on the deed.What we would like to know is what happens to the house when he passes on.Does it go into probate? Will his wife get the house?And what can she do if she wants to sell it?Also what happens to the house when she passes away?
You should consult an attorney in your area who practices in the probate court. From the facts as presented there will need to be a probate. This response relies on the facts as stated, that your father never added your step-mother's name to the deed.
How the property is treated in the probate is another matter, and again you should seek counsel. The facts will be important. The fact that the porperty must be probated does not preclude the possibility that there may be a claim for some share or value in the house for your step-mother. Was there a will? If so, did your father leave the property in the will to your step-mother. These are just some of the questions that will arise. Good luck, but see an attorney to assist you with these questions.
Unfortunately, from the facts you presented, it is unclear what the state of ownership is. If your mother's name is on the title, how did she acquire it? And when he died, did she leave a will that was probated? Your father would have to straighten out this first.
Whatever interest he DOES have in the house would be his sole and separate property. Unless he and his current spouse made substantial improvements to the house since your mother passed away, it is unlikely that the current spouse would be able to make any community claims to the house. If there are sufficent other assets to cover any statutory family allowance his current spouse might be entitled upon his death, whatever interest he has could be passed at his death outside of probate by his executing and filing a beneficiary deed.
However, as I said, he needs to get the current state of title straightened out without an attorney first.
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The most likely answer is that If Dad dies, the property will be subject to probate because he is the last surviving owner on the deed. There are different levels of probate, depending on many factors including the amount of equity in the property.
In order to determine the heir, I would need to know whether the original deed included a "right of survivorship" clause or not. Whether your stepmother inherits the property depends on the provisions of Dad's Will. If he doesn't leave a Will, then the default is 1/2 to stepmother and 1/2 in equal shares to the descendants of Dad. See ARS 14-2102 and page 100 of my published book.
Unfortunately, this is a very common, and completely avoidable problem. If nothing is done to correct or clarify the situation during your father's lifetime, a probate will most likely be required. However, since your father is alive, it is not too late to remedy the situation and avoid a probate upon his death.
The first step is to determine the relevant facts, including 1) does the deed contain a right of survivorship provision; 2) how much equity is in the property; 3) does your father have a Will or a Trust?; 4) is your father legally able to execute any needed documents, or if not, is there a valid durable power of attorney; and 4) what are your father's wishes for the property.
The answers to these questions will determine what happens, and also what can be done to avoid probate and carry out your father's wishes.
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