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The Real Estate Adviser

Inherit property? Get clear title in court

Dear Steve,
My husband died in 2002. I did not probate the will, as I am the only beneficiary. We never had his home put in both of our names. I am paying the property taxes but cannot sell the home, although the will allows me to, because I cannot have the title placed in my name. What do I do?
Mrs. T.

Dear Mrs. T.,
Fret not, because you said the magic words, "The will allows me to."

Assuming that your late husband's will is validly executed, the road to getting that title placed in your name should not be a rocky one. However, the trip itself may take a little longer than you'd probably prefer, particularly if you're under immediate financial pressure to sell.

Some well-meaning person obviously told you, and rightfully, that you couldn't sell the home without clear title. But he or she didn't think to mention, or didn't know, that this problem is routinely rectifiable in probate court.

The reasons you can't sell right now are sound, however. It isn't that you aren't trustworthy, Mrs. T. Even if you're holding a seemingly airtight will, potential buyers of your home have no legal assurance that the place is actually yours to sell, explains Greg Matus, an estate-planning and probate attorney with San Diego Law Firm.

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For all they know, there could be other wills out there that were penned by your husband, or other would-be heirs who may step forth to claim the property. And that would create a sorry legal mess. Hence, you have to get a legal paper that says you are the one and only rightful owner.

Depending on which state you're living in, the amount of time these types of cases take to be heard and processed will vary. In California and some other states, you can take an express route to resolution by having your entitlement action go to a simple hearing, a process that usually takes about 60 days in most cut-and-dried cases, says Matus. In other states, you'll have to go through full-blown probate court, which could take, unfortunately, about a year.

Of course, you'll have to retain the services of an attorney, ideally a probate specialist, to determine the best route and help you present your evidence in civil court.

And if I read you right, Mrs. T., there are no children or other relatives who might have any reason to believe they should get a share of the proceeds. If there were, you and your attorney would have to legally notify them of the hearing date.

I hope you'll soon have that title free and clear.

As always, good luck.

-- Posted: Jan. 31, 2004

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