QUESTION
Who owns the property after my brother passed away and why?
Asked on Aug 27th, 2015 on Estate Planning - Oregon
More details to this question:
My brother passed away from a heart attack two weeks ago. His wife left him 3 years ago, started a new life and had another baby, they had 2 children together, now that he passed away she shows up with a lawyer in hand and wants the titles to the 2 homes he owed to the cars and even wants his clothes and shoes. My mom lives in my brother's home, can she take everything that belonged to him legally? Or do we have a fighting chance to keep the homes and the vehicles within our family? Please advice.
14 ANSWERS
Thomas Edward Gates
I am assuming that there was no will and there was not a divorce. Because he died intestate (without a will), the surviving spouse gets the community property and one-half of the personal property. The children get the remaining one-half of the personal property in equal shares.
Answered on Sep 01st, 2015 at 9:41 PM
If your brother is still legally married to his wife and there is no will, she has first claim on his estate. His children would have the next claim. You can ask the probate court to reduce the amount the wife receives on the grounds that she abandoned him. However, it is likely that the court would transfer the rest of the assets to the children in trust and she would serve as the trustee until they come of age.
Answered on Aug 31st, 2015 at 5:23 AM
If your brother did not leave a Will, he dies intestate. I do not see how just living separated could change the usual treatment. However, a family law attorney may be better placed to advise you. In Oregon, the surviving spouse gets all of the property in an intestate estate unless the decedent leaves children from another person. In that case the property is split between the surviving spouse and the children from another person. So, chances are the surviving spouse is correct. But you should consult an attorney about the specific facts of your situation.
Answered on Aug 31st, 2015 at 5:23 AM
Business Attorney serving Orem, UT
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Kirton & McConkie A Professional Corporation
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I express my condolences on the loss of your brother and the difficult situation in which you find yourself. Under Utah law, if a person does not leave a will or trust governing their estate, the surviving spouse is an heir at law. A surviving spouse cannot be disinherited without that spouse's consent anyway because of the "spousal election" that allows a spouse to claim up to one-third of what is called the "augmented estate." It is a complicated calculation, but for purposes of your question it means that if your brother and his estranged wife were still married when your brother passed away, she would have a claim on the estate. It is possible that she could claim the entire estate. I recommend you hire an attorney experienced in estate planning and probate in Utah to advise you.
Answered on Aug 28th, 2015 at 2:22 PM
Edwin K. Niles
You and/or Mom should have a conference with an estate lawyer ASAP. There are too many unanswered question to address your inquiry here.
Answered on Aug 28th, 2015 at 2:21 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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In Missouri, your brother's wife is considered to abandoned your brother and would not inherit the estate because she left her husband, has been gone for over a year, and is living with someone else and has had a child with that person. The question is whether your brother had any children with his wife or any other children. If he has any children, they would be the beneficiaries. If your brother did not have any children, then you and your mother would be the beneficiaries. Please see an attorney.
Answered on Aug 28th, 2015 at 10:59 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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If your brother and his wife were married at the time of his death then she has all the rights of a spouse regardless of their decision to separate. If your brother had no descendants then the wife would be the sole heir unless your brother had a will. An estate would have to be opened and representative appointed to collect and distribute the assets of the estate. If your brother had descendants then the descendants share in one half of the estate and the wife receives one half of the estate.
Answered on Aug 28th, 2015 at 10:34 AM
Commercial & Bankruptcy Law Attorney serving Powell, OH
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Ronald K. Nims
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First, nobody is allowed to just start grabbing things. A probate needs to be filed and the court will determine who gets what. In any case, title to real estate or a motor vehicle owned by a dead person can ONLY be transferred by a court. (After all, the deceased can't sign a deed or title). If your brother divorced her or they had a separation agreement, she's not entitled to anything. If he didn't divorce her or have a separation agreement, then she's entitled to up to 1/2 of what he owned (minus any debts). The kids are entitled to the other 1/2. Your mother, as a parent, and you, as a sibling, aren't entitled to anything.
Answered on Aug 27th, 2015 at 10:42 PM
2 Awards
You'll need to fight for it. If she's the wife, she will have rights, even if she is a lousy wife. The kids will have rights, too.
Answered on Aug 27th, 2015 at 6:58 PM
This will have to go to probate unless he had a trust. If he didn't have a will either, the wife will get the property.
Answered on Aug 27th, 2015 at 6:18 PM
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Were they divorced? Legally separated? Did he have a Will? Speak with an attorney in the county where your brother lived. There are a lot of issues. This is opinion is solely based upon the facts presented in the inquiry. Additional facts may be important and may change the analysis. If you are uncertain, seek legal counsel. We are not your attorneys. This answer is being offered to assist you in determining if you need to retain legal counsel to assist you, not to resolve your issue through an email inquiry.
Answered on Aug 27th, 2015 at 6:12 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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See an attorney, were they divorced or in the process.
Answered on Aug 27th, 2015 at 6:10 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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I assume that your brother did not have a will, and was never divorced from the wife. The wife would be entitled to one-half of the assets as her half of the community property. Things may be more complicated than this, and you should sit down and talk to a lawyer before making any decisions.
Answered on Aug 27th, 2015 at 6:08 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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I hope he had a will, and changed it after she left. If not, and if they're still married, and if all of his children are also her children, then you're in a very bad spot. If there is real property at stake, there is enough value so that you should get a good probate litigation lawyer and bring the rain.
Answered on Aug 27th, 2015 at 5:26 PM