Who has legal rights to a property after a person has died?

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Who has legal rights to a property after a person has died?

My mom and dad were married but he hasn’t lived at the property for over 30 years. My sister has lived there all her life, since my mom’s passing. My dad is now trying to get possession of the property; his name is still on the deed. Who has legal rights? My mom didn’t have a Will.

Asked on August 15, 2017 under Estate Planning, North Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First of all, if your father was on the deed to the house, then he has rights to it. If after their names it reads, "joint tenants with rights of survivorship" or "tenants by the entirety", then by operation of law, upon your mother's death he was vested with 100% ownership of the house. If the deed only had their names, then he is entitled to 1/2 the house plus whatever he is due as your mother's surviving spouse. This is true even though they were separated. Since your mother died without a Will, she died "intestate". This means that the law of the state in which she was domiciled as of the date of her death will control. In NC, the state intestacy statute provides that a survivng spouse inherits 1/3 of their deceased spouse's real estate and a portion of of their personal property. If they died with personal property worth $60,000 or less, the spouse inherits all; if the deceaed spouse had more than $60,000 worth of personal property, their spouse inherits $60,000, plus 1/3 of the balance. The children inherit 1/3 of the real estate and any personal property remaining after the surviving spouse’s share. At this point, you need to consult with a local attorney as to all of this.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First of all, if your father was on the deed to the house, then he has rights to it. If after their names it reads, "joint tenants with rights of survivorship" or "tenants by the entirety", then by operation of law, upon your mother's death he was vested with 100% ownership of the house. If the deed only had their names, then he is entitled to 1/2 the house plus whatever he is due as your mother's surviving spouse. This is true even though they were separated. Since your mother died without a Will, she died "intestate". This means that the law of the state in which she was domiciled as of the date of her death will control. In NC, the state intestacy statute provides that a survivng spouse inherits 1/3 of their deceased spouse's real estate and a portion of of their personal property. If they died with personal property worth $60,000 or less, the spouse inherits all; if the deceaed spouse had more than $60,000 worth of personal property, their spouse inherits $60,000, plus 1/3 of the balance. The children inherit 1/3 of the real estate and any personal property remaining after the surviving spouse’s share. At this point, you need to consult with a local attorney as to all of this.


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