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Saturday, July 26, 2014

She told me I'd inherit the house but didn't say so in her will. Now what?

What if someone in your family promised that you would inherit her house, but then doesn't say so in her will? Is there anything that can be done? Does it make a difference that the other beneficiaries agree that you can have the house? This topic was raised recently by a reader of this blog. Her note and my reply are below.

"My aunt died recently and her will doesn't mention anything in writing about her house. Approx 2 months ago she said in front of the executor of the will and a man from her bank that she wanted me to have the house. She said this numerous times. She told all her friends this and other family members. The only beneficiaries are myself my siblings and another aunt (she has 50% the remaining 50% split equally between us siblings). All are in agreement I can have the house, but the executor says no it wasn't written down. Is this right ? I assume it is but just checking."

The executor is right, but it can still be done.

Obviously I don't know why your aunt didn't include the gift of the house to you in her will. Perhaps she meant to, but didn't get around to it. Or perhaps she thought that telling people verbally would be good enough. Because the house was not specifically mentioned in the will, it becomes part of the residue of the estate. That just means it's part of the general estate, like her bank account or any other assets, that are available to pay the debts and then be divided among the beneficiaries.

The executor is doing exactly what he should do, which is follow what's in the will. Your aunt did not create an enforceable right for you to have the house. Sometimes a promise that someone is going to receive a house or other property does create an enforceable right, but yours is not one of those cases. The only reason that anything can be changed now is that all beneficiaries agree; if they did not agree, you'd be out of luck. Their agreement is necessary because each of them must give up part of what they are supposed to receive, and the executor can't force that on them even if he were willing to try.

What has to happen is for all beneficiaries to agree in writing. They must also instruct the executor in writing to transfer a portion of their inheritance to you. This is done using a document called an Assignment. I would suggest that each beneficiary sign the document in the presence of someone unrelated to the estate. It's going to take some number-crunching to arrive at the right proportion for each beneficiary.

Understand that the house is likely to be the only thing you get from the estate. You are not likely to receive the house as well as a share of the estate. It's possible of course, but it would require an unbelievable amount of altruism on the part of the other beneficiaries.

This paperwork isn't something that you should try to create on your own. You don't want to muddle through with home-made documents just to have someone come back to you in a year or two claiming it's all wrong and trying to claim your house. If the executor has hired a good estate lawyer, perhaps he or she could help. If not, it would be worth it for you to find one yourself. Yes, it will cost money, but you will be able to ensure that you actually get the title to the house, legally and properly, so it will be worth it.

Another thing to clarify among the beneficiaries is what is to happen with the contents of the house. I think you will find that when you say "my aunt's house", half the people involved think that includes everything in the house, and the other half think the opposite. Talk about this with them. Legally getting a title to a house does not include the contents.

Might I just mention how great it is to finally hear a story in which people are being considerate of each other's wishes instead of being out to get everything they can? Kudos to your family for how they are dealing with this situation.

1 comment:

  1. A will is a legal document that shows how many assets are distributed after your death. An important legal document that carries our desired wishes for the distribution of property or assets after your demise. But if there is anything that is promised to you verbally in the case of a property or an asset is not written in a will, it could lead to other problems . And if you are so sure about the property which your aunty said which be given to you and is not written in the will. Consult a good real estate law firm like GCY, Davis LLP, Weltman, Bernstein etc who could help you out.

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