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Intestacy Calculators℠

Will the house be sold if an heir wants or needs to live in it?

Introduction – Joint Ownership
When considering the intestate succession of real estate, it is important to acknowledge that many forms of property are owned in a manner that provides legally binding instructions for ownership following the death of any individual or joint owner. Of all types of property, real estate is frequently owned in this manner. (Deposit accounts are also frequently owned by multiple parties.)

All property that has legal instructions for its ownership upon an owner’s death is excluded from the intestate estate and cannot be controlled by the intestate laws.

Whether a house must be sold as part of the settlement of an intestate estate will largely depend upon how that house is owned or titled.

Joint Ownership – Spouses
Most spouses own their homes in a form of joint tenancy known as a “tenancy by the entireties.” This form of title causes sole ownership to transfer to the survivor upon the death of either spouse. In these circumstances, the surviving spouse has legal ownership of the entire house upon the other spouse’s death and no other person has a right to claim a portion of its value. This includes creditors, who cannot attach the house or request its sale for payment of the deceased spouse’s individual debts.

Joint Ownership – Children
Any two or more people, whether or not they are related, can also own property in a manner that gives ownership to the survivor or survivors upon the death of any other owner. This form of ownership is known as ‘joint tenancy with the right of survivorship.”

Property owned in this manner is also excluded from the distribution of the intestate estate of each deceased owner, provided that any other joint owner is living at the time of death.

For this reason, parents occasionally transfer title their primary residence to themselves along with one or more of their children as joint tenants with the right of survivorship. When this is done, the parent or parents normally intend to live in the house until death.

Although the parent intends to retain the same control as a sole owner property titled in this manner is owned by all the parties. Even though the parent may be the only person living in the house, perform all maintenance, and pay for all of its expenses, the parent cannot always deal with the house as a sole owner. For instance, if the parent wants to sell or place a mortgage on the property, each child whose name is on title must also participate.

Individually Owned House
If the property is not owned jointly (and is not subject to any other conditions that transfer ownership automatically at death) the property’s value is included in the intestate estate. Like all other forms of intestate property, the house is included in the intestate estate as its cash value.

With an assigned value, any heir whose share of the intestate estate is equal to or greater than the house’s value has the right to ask for the actual house as payment towards his or her share. However, the administrator of the estate is not required to grant this request.

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