By Linda Toga Esq.
THE FACTS: Last year my aunt Sue died without a will. She was widowed and owned a house that had been in our family for generations. The understanding was that when she died, the next generation, including me and my siblings, would inherit the house. Recently, my aunt’s daughter, Mary, signed a deed transferring the house to herself and her only sibling, Jane.
THE QUESTION: Did Mary have the legal authority to transfer the property?
THE ANSWER: Unfortunately for you, as Sue’s daughter and a distributee of Sue’s estate, Mary was well within her rights to transfer the property. If Sue had a will in which she left you and your siblings a share of the house, Mary would not have been able to transfer the property to herself and Jane. She would have first been required to obtain letters testamentary from the Surrogate’s Court (assuming she was named as executrix in the will) and she would then have to abide by the terms of the will by transferring the house to the beneficiaries named in the will.
However, since Sue died without a will, by law title to the house automatically vested in her children when she died. In other words, as Sue’s only children, Mary and Jane immediately became the legal owners of the house when Sue died. The law that addresses vesting does not apply to you or your siblings because you are not in Sue’s direct bloodline. If Sue did not have any children, the outcome may have been different.
If Sue wanted you and your siblings to have a share of the family home, she should have had an estate planning attorney prepare a will for her in which her wishes with respect to the property were memorialized. The executor of the estate would then be obligated to carry out Sue’s wishes and transfer the property to you, your sibling and any other beneficiaries set forth in the will. Absent a will, you have no claim to the house.
Linda M. Toga provides legal services in the areas of estate planning/elder law, probate and estate administration, real estate, small business service and litigation from her East Setauket office.