what are my brother and I entiled to if any

UPDATED: Sep 30, 2022

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what are my brother and I entiled to if any

my father remarried, step mother moved into our home, we are adults now, father passed away, we found no will, she now wants to sell the house, at the time of fathers passing a balance was owed his house aprox 60000.00, a year later she wants to sell the house , do we have any rights to my fathers house?

Asked on September 14, 2016 under Estate Planning, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

When there is a no will, property passes on death by "intestate succession," which are the rules who gets what in the absence of a will. When there is a spouse and descendents not from that spouse (e.g. you and your brother, since your mother is not your stepmother, who was your father's wife at the time of his death), the spouse gets 1/3 of the estate and the descendents get the other 2/3. Since there are 3 of you, it work out that you each (stepmother; you; your brother) get 1/3 of the estate and a 1/3 interest in the home. So you and your brother together will inherit and then own the majority of the house. But since the stepmother will get 1/3 and also be an owner, if the three of your can't agree on what to do, she can bring an action "for partition" to get a court order requiring that the home be sold and the proceeds, after costs of sale and mortgage, be distributed; this is how the law deals with disputes among real estate owners about the property, by having it sold and the owners go their separate ways. If she does this, say the house is worth $190k, has a $60k mortage, and costs of sale are $10k; then after taking out the $70k costs and mortgage, the three of you will split $120k, or get $40k each.

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