How can we find out who property belongs to now that mother is deceased?
Full Question:
Answer:
The answer will be a matter of determination for the court, based on all the facts and documents involved. Some of the factors that may be considered, among others, may include whether the father intended to revoke a gift by a later transfer and whether the property was held as joint tenants or tenants in common. For example, if spouses hold property as joint tenants, both must sign a deed in order to transfer the property. In order to find a gift, there must be a completed delivery, so if a transfer of a gift isn't completed, it is possible for it to be revoked. A completed gift made during a decedent's lifetime typically removes it from being included as part of the estate upon death. I suggest you contact a local attorney who can review all the circumstances and documents in the matter.
When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
Typically, when a gift is delivered by the donor (gift giver) and accepted by the donee (receiver of the gift), the donor has given up rights of ownership and the donee is the new owner. In order to prove a gift was made, there needs to be a completed delivery by the donor and acceptance by the donee. However, a gift may be made conditionally, so that if the conditions aren't met, the gift may be taken away from the done.
Gifts are not enforceable in the same manner that contracts are because they aren't supported by consideration, meaning that they are given without an exchange of something in return. Courts disfavor enforcing a promise to make a gift, and typically require the donee to prove detrimental reliance on the gift in order to enforce the promise. For example, if a person signs a pledge from to donate money to a charity and the charity signs a contract with penalties for cancellation to build a hospital wing based on this promised gift, the gift may be enforced.
Will contests challenge the admissibility of wills in probate courts. It is a kind of litigation that questions whether a will should be properly admitted by the court as evidence of a decedent's wishes regarding the distribution of his estate, appointment of guardians for minor children, or other issues dealing with the decedent's estate. One may not contest the validity of a will merely because that person does not like the will's provisions. A will's validity is not determined by one's sense of "fairness" of the will's contents. Nor is a will's validity determined by how reasonable the will's provisions appear nor on the timing of disbursements.
Despite the feelings of a decedent's family or friends, a will is most likely to be challenged by someone claiming one of the following:
-the will was not properly written, signed or witnessed, or did not meet the state's formal requirements
-the decedent lacked mental capacity at the time the will was executed
-the decedent was a victim of fraud, force, or undue influence
-the will is a forgery
If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case.
If someone files an objection to your will or produces another will, a "will contest" has begun. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. Not just anyone can contest a will. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent. For example, if a decedent revises his will and the later will is less favorable to someone than an earlier will, that person has standing. Someone may initiate a will contest to have a different person, bank, or trust company serve as the personal representative for an estate or serve as a trustee of trusts created by the will. Some of the most common challenges to wills come from potential heirs or beneficiaries who received less than they had anticipated.
