If a father Wills a house to his children and their mother lives in it and then dies, does the mother’s Will have to be probated before children can sell the house?

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If a father Wills a house to his children and their mother lives in it and then dies, does the mother’s Will have to be probated before children can sell the house?

The father’s Will has already been probated.

Asked on February 23, 2013 under Estate Planning, Georgia

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

I do not practice law in Georgia.  In Florida, the answer to this question would be complicated by the Florida Constitutional homestead provisions.  In Florida, a spouse gets a life estate in the marital home, regardless of what a will says.

A deed should have been prepared as part of the father's probate.  This deed should have transferred title to the property into the names of the children. It could have transferred title to the wife "for life" and then to the children.  The "for life" title is called a life estate.

If a deed was prepared putting title in the names of the children or in the name of the wife for life and then the children, the children can sell the house without probating the mother's will.  The ability to sell a house depends on whose name is on the deed. A life estate terminates upon death.

I hope this helps.


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