Can I Become an Owner if I Am On the Mortgage But Not On the Deed and the Owner Dies?
Full Question:
Answer:
The answer will depend on all the facts involved, such as whether other persons were named on the deed, whether there was a will, and whether you are a spouse or relative. When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. The court will issue testamentary letters to the executor, giving the authority to handle the affairs of the deceased. To dispose of the real property interests of the decedent, the executor executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies, the executor of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under the will.
Real estate held by owners as joint tenants with right of survivorship passes automatically to the surviving tenant outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs.
In New York, if someone dies without a Will, he or she is said to have died intestate. When someone dies intestate, New York law lays out how the estate will be distributed in the New York Probate Code. Under New York statute, where an estate is valued at $30,000 or less, an interested party may, at any time after the death of the decedent, file a petition to become a voluntary administrator of the estate.
In some cases of people who formerly cohabited, courts have found a trust created in property of one person who cohabits with another, whereby the property is deemed held for the benefit of their domestic partner. When there is no formal trust agreement, a resulting trust may still be found under certain circumstances in order to enforce agreements regarding the property and income of domestic partners. If there is evidence that the parties intended to create a trust, but the formalities of a trust are lacking, the court may declare a resulting trust exists. The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. Each case is decided on its own facts, taking all circumstances into consideration.
Please see the NY statutes below to determine applicablility:
§ 4-1.1 Est. Powers & Trusts. Descent and distribution of a decedent's
estate.
The property of a decedent not disposed of by will shall be distributed
as provided in this section. In computing said distribution, debts,
administration expenses and reasonable funeral expenses shall be deducted
but all estate taxes shall be disregarded, except that nothing contained
herein relieves a distributee from contributing to all such taxes the
amounts apportioned against him or her under 2-1.8. Distribution shall then
be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter
defined), and no spouse, issue, parent or issue of parents, onehalf to the
surviving paternal grandparent or grandparents, or if neither of them
survives the decedent, to their issue, by representation, and the other
one-half to the surviving maternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by representation;
provided that if the decedent was not survived by a grandparent or
grandparents on one side or by the issue of such grandparents, the whole to
the surviving grandparent or grandparents on the other side, or if neither
of them survives the decedent, to their issue, by representation, in the
same manner as the one-half. For the purposes of this subparagraph, issue
of grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren of
grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the great-grandchildren
of the maternal grandparents, per capita; provided that if the decedent was
not survived by great-grandchildren of grandparents on one side, the whole
to the great-grandchildren of grandparents on the other side, in the same
manner as the one-half.
(b) For all purposes of this section, decedent's relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but
born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as provided
in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.
§ 4-1.2 Est. Powers & Trusts. Inheritance by non-marital children.
(a) For the purposes of this article:
(1) A non-marital child is the legitimate child of his mother so that he
and his issue inherit from his mother and from his maternal kindred.
(2) A non-marital child is the legitimate child of his father so that he
and his issue inherit from his father and his paternal kindred if:
(A) a court of competent jurisdiction has, during the lifetime of the
father, made an order of filiation declaring paternity or the mother and
father of the child have executed an acknowledgment of paternity pursuant
to section four thousand one hundred thirty-five-b of the public health
law, which has been filed with the registrar of the district in which the
birth certificate has been filed or;
(B) the father of the child has signed an instrument acknowledging
paternity, provided that
(i) such instrument is acknowledged or executed or proved in the form
required to entitle a deed to be recorded in the presence of one or more
witnesses and acknowledged by such witness or witnesses, in either case,
before a notary public or other officer authorized to take proof of deeds
and
(ii) such instrument is filed within sixty days from the making thereof
with the putative father registry established by the state department of
social services pursuant to section three hundred seventy-two-c of the
social services law, as added by chapter six hundred sixty-five of the laws
of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the
filing of the instrument, send written notice by registered mail to the
mother and other legal guardian of such child, notifying them that an
acknowledgment of paternity instrument acknowledged or executed by such
father has been duly filed or;
(C) paternity has been established by clear and convincing evidence and
the father of the child has openly and notoriously acknowledged the child
as his own; or
(D) a blood genetic marker test had been administered to the father which
together with other evidence establishes paternity by clear and convincing
evidence.
(3) The existence of an agreement obligating the father to support the
non-marital child does not qualify such child or his issue to inherit from
the father in the absence of an order of filiation made or acknowledgement
of paternity as prescribed by subparagraph (2).
(4) A motion for relief from an order of filiation may be made only by
the father and a motion for relief from an acknowledgement of paternity may
be made by the father, mother or other legal guardian of such child, or the
child, provided however, such motion must be made within one year from the
entry of such order or from the date of written notice as provided for in
subparagraph (2).
(b) If a non-marital child dies, his surviving spouse, issue, mother,
maternal kindred, father and paternal kindred inherit and are entitled to
letters of administration as if the decedent were legitimate, provided
that the father and paternal kindred may inherit or obtain such letters
only if the paternity of the non-marital child has been established
pursuant to provisions of clause (A) of subparagraph (2) of paragraph (a)
or the father has signed an instrument acknowledging paternity and filed
the same in accordance with the provisions of clause (B) of subparagraph
(2) of paragraph (a) or paternity has been established by clear and
convincing evidence and the father of the child has openly and
notoriously acknowledged the child as his own.
§ 4-1.4 Disqualification of parent to take intestate share.[fn*]
[fn*] NB Effective January 1, 2007
(a) No distributive share in the estate of a deceased child shall be
allowed to a parent if the parent, while such child is under the age of
twenty-one years:
(1) has failed or refused to provide for the child or has abandoned such
child, whether or not such child dies before having attained the age of
twenty-one years, unless the parental relationship and duties are
subsequently resumed and continue until the death of the child; or
(2) has been the subject of a proceeding pursuant to section three
hundred eighty-four-b of the social services law which:
(A) resulted in an order terminating parental rights, or
(B) resulted in an order suspending judgment, in which event the
surrogate's court shall make a determination disqualifying the parent on
the grounds adjudicated by the family court, if the surrogate's court
finds, by a preponderance of the evidence, that the parent, during the
period of suspension, failed to comply with the family court order to
restore the parent-child relationship.
(b) Subject to the provisions of subdivision eight of section two
hundred thirteen of the civil practice law and rules, the provisions of
subparagraph one of paragraph (a) of this section shall not apply to a
biological parent who places the child for adoption based upon:
(1) a fraudulent promise, not kept, to arrange for and complete the
adoption of such child, or
(2) other fraud or deceit by the person or agency where, before the death
of the child, the person or agency fails to arrange for the adoptive
placement or petition for the adoption of the child, and fails to comply
timely with conditions imposed by the court for the adoption to proceed.
(c) In the event that a parent or spouse is disqualified from taking a
distributive share in the estate of a decedent under this section or 5-1.2,
the estate of such decedent shall be distributed in accordance with 4-1.1
as though such spouse or parent had predeceased the decedent.
§ 4-1.5 Est. Powers & Trusts. Other disqualifications.
No estate property, whether passing by intestacy or otherwise, which has
its situs in this state, shall pass to any other state or territory of the
United States, or to any foreign country or sovereignty in the event of the
absence of an individual heir, distributee, legatee or owner of said
property, but shall pass as abandoned property to the state of New York,
and shall be held as such property pursuant to the abandoned property law.
