During my mother's illness we were advised to put her house and property in one her children's name, since my sister was exectutor we chose her to be put on the property deed along with my mother, with the understanding that the house and all property were to go to all 4 of her children upon her death, and that is exactly how it stated in the will, which has been probated. We recently learned from the tax office that the house and property is solely in my sister's name. Apparently the deed supercedes the will in WV. How can we get all 4 names on the deed and how much, (ballpark), does that cost?
If the house was deed as joint tenants with right of survivorship with your mother and sister, upon your mother's death, the house automatically passed to your sister. This occurs outside of the will and so the house is considered "non-probate" property not subject to the terms of the will. This general rule is true in all states. If you sister is willing to share the home you should have no issue with her (as owner) "gifting" an interest to the siblings so you all share it equally. Your sister has no obligation to do this though. Your sister also has some gift issues that she should address (she is gifting property to you all and may need to file a gift tax return although no tax would likely be due) and you also have a taxable income issue when (if) the property is sold because the house was a lifetime gift and did not pass at death.
You need to consult with an attorney to assist you with these issues. It does not sound extremely complicated but you do need advice to handle things properly.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
I agree with Atty. Zelinger. It frustrtates me when people are "told" to put houses or accounts in joint names without realizing the legal consequences and the possible negation of their own estate plans.
The approach is for your sister to accept that this was your mother's intent and voluntarily add the rest of you to the title. If she refuses, then you are in a tough spot, having to go to a court and try to prove, without your mother's testimony being available, that it was your mother's intent to set up the joint ownership for convenience only and not as an intent to defeat her own will or disinherit the rest of you.
Speak to a local attorney about this.
To questioners from West Virginia & New York. Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
I agree with both of my colleagues. Your mother was given poor advice, previously. If the desire was to avoid probate, then ALL of the children should have been added to the deed, as joint tenants. Since that was not done, you are left to clean up the mistake(s).
If your sister is willing to do this, then it will be a relatively easy fix. A quit claim deed to all of you will align things with your mother's apparent intent. Your sister would probably need to file a gift tax return with the IRS, although there would likely be no tax. The cost would be relatively modest.
If your sister is not willing to do this, then you may have a very tough battle convincing the court to undo the deed. It could be a long expensive battle and your chances are likely less than 50/50.
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.
In Washington state we have a very progressive statute that allows families to clear up an issue like this one. It is called TEDRA, the Trust and Estate Dispute Resolution Act. Using the provisions in this law, the family members involved in this situation could all agree that the house was to go to all four children.
I hope West Virginia has such a law. Otherwise, I hope the one sister named on the deed is cooperative because another option is to have the one sister whose name appears on the deed to convey the property to her along with the other three of you. You should seek the advice of a West Virginia lawyer on these matters for sure.
I would not know what a West Virgina lawyer would charge for these services.
I hope you can work this out equitably.
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