Probating a Will When All to Spouse

[Marc]

This is a strange question for this forum; however, I feel some of you might have had the same experience so you could have recommendations or at least lead me in the right direction.

A few years back we bought my mother and step-father's house and they kept the paper. Now, we are ready to pay off the loan. In the interim, my mother died. I just learned today that her husband never probated the will as all was going to him. The lawyer who prepared the promissory note prepared the release of lien. He told my step-father that we "might" have issues down the road when selling this house with a title company claiming title wasn't clean.

He did say they could probate the will now (taking time and some cost) and then release the lien or we could just release the lien and "possibly" nothing comes of it down the road.

I really don't want to incur additional costs on us or my step-father but I don't want to be stuck with a house I can't sell in the future (or my heirs can't sell).

Any thoughts?

thanks,

Marc

 

[MarieIG]

Perhaps you can have the promissory noted along with proposed release of lien looked over by a title company. Since their job is insuring clean title, they should know.

 

[JustCurious]

A few years back we bought my mother and step-father's house and they kept the paper.

What does this mean, "they kept the paper?"

 

[Katsmeow]

Any thoughts?

Talk to a lawyer who represents you and find out what the options are in your state. Different states have different options. My mom never probated my dad's will. I didn't realize this could cause a problem until it was too late for her to probate the will. Had it been possible to probate the will at that time I would have advised her to do that. In my state, there is an affidavit of heirship process which I used. But -- options vary from state to state.

Anyway -- yes, this can be an issue. You should find out what your options are in your state from an attorney who represents you. And would suggest you find out the sooner the better, as some options may vanish with the passage of time.

 

[Splash]

Caveat: Probate laws differ by state.

I am administering my mom's estate through probate in WI right now. According to her will, her husband (my step dad) is the sole beneficiary. The real estate title for their home is in my mother's name only. When my dad died my mom had his name removed from the title. However, her second husband's name was never added to the title. Because the value of her estate is > $50,000, probate is required to transfer the title to her husband. If the title had been in both their names, we would have been able to transfer the deed to her husband without going through probate.

Were your names or your step dad's name on the title to the property when your mother passed? If at least one of them were, I'm thinking your issues will be less than if they weren't. I agree that you should seek the advice of an attorney. It would be much better to deal with any issues sooner rather than later.

 

[athena53]

It's unclear what the "lien" is.

Did you buy the house from them but they loaned you the money (i.e., seller-financed mortgage)? If that's the case, the title should already be in your name but the complication is that your mother is no longer alive to sign the release of the mortgage (lien).

Or was it a type of installment sale, in which they were the owners until you finished making payments according to a specified schedule? That would be more complicated but I'm not a lawyer so I'm just going to suggest you find a good one!

MUCH better to get it cleared up now. When you get to the point that you want to sell it, trying to figure everything out then could hold up a potential sale.

 

[Marc]

It's unclear what the "lien" is.

Did you buy the house from them but they loaned you the money (i.e., seller-financed mortgage)? If that's the case, the title should already be in your name but the complication is that your mother is no longer alive to sign the release of the mortgage (lien).

Yes.

Thanks for all the sage advice; will meet with title company this week.

Marc

 

[Katsmeow]

Yes.

Thanks for all the sage advice; will meet with title company this week.

Marc

Note that title company requirements for what they require to issue a title policy can be different between title companies. For example, some title companies may have requirements beyond what the law requires. In this situation, while meeting with a title company may give you some information, it is not a substitute for legal advice from an attorney representing your interests.

 

[misanman]

As far as not probating a spouses will - I think this happens quite a bit. My MIL never probated her husbands will. I thought maybe there was a requirement to do so but apparently not as no one cared. If a will isn't probated I guess it just isn't probated. It made absolutely no difference in her case.

 

[athena53]

As far as not probating a spouses will - I think this happens quite a bit. My MIL never probated her husbands will. I thought maybe there was a requirement to do so but apparently not as no one cared. If a will isn't probated I guess it just isn't probated. It made absolutely no difference in her case.

I agree- DH had a will but his only asset, other than clothing and the usual stuff, was a checking account with about $250 in it and a small IRA with me as the named beneficiary. We'd known he was dying and even moved the cars into my name beforehand. No debts- he was an Authorized User on my credit cards, which I pay in full every month. The house was titled in a trust in my name. The will left everything to me. I didn't do anything to probate it.

 

[bingybear]

If your mother held the lien and everything went to your step dad, then I would think he would own the lean. Then is should be your step dad would sign the release when the lien is paid.

Not sure that you need a title company, but to get a release of the lien when it is paid... and to make sure the proper owner of the lien signs it.

It sounds like you have title to the property and are just making sure it is clean.

 

[Mhoepfin]

I would suggest probating the will to ensure proper closure of the estate and it’s debts. In addition, there may be requirements to prove executorship through letters testamentary for some accounts and also to establish bank accounts in the name of the estate.

I’ve unfortunately been through this 3 times this year for both of my parents and my uncle (and as executor/administrator for all 3 estates!).

 

[bizlady]

If you had a promissory note, were you then recorded as half owners with an undivided interest? You may want to see if the attorney did the recording when the promissory note was created, assuming it was not just done between you and your mom on your own

 

[SumDay]

What does this mean, "they kept the paper?"

The parents 'carried' the mortgage, and the OP paid them, instead of paying a bank or a lender. My father did this for years. It was his sole retirement (I was never one of the buyers )