When a person dies without leaving a Will and Testament he dies “intestate” and his property descends or passes to others as provided for in the statutes in effect at the time of death. When a person dies leaving a Will and Testament he dies “testate” and his property passes or descends as provided in his Will. The surviving spouse, either husband or wife, may renounce the Will and then his/her interest will be determined under the statutes. However, all other parties mentioned in the Will will be governed by the terms of the Will.
A Will must be filed in Probate Court after death in order to be valid and effective. It must be filed in Court within nine months after letters of administration are issued and if no letters of administration are issued, the Will must be filed within five years after death, otherwise it is not valid. A copy of the Will must also be filed in the office of Recorder of Deeds in the county where the real estate is situated.
A person's interest or title to real estate can only be determined by a deed of conveyance such as a warranty deed, quit claim deed, or other written instruments on file in the office of Recorder of Deeds. Title can never be determined by parole or verbal agreement. A person has a “fee simple” title or interest in real estate when he has a full and complete title. The property may be subject to mortgage or deed of trust and still be a “fee simple” title.
A “life estate” is when the person only has the right to have possession, use, occupancy, and receive the income from the property during his natural life, and his interest ceases at his death. He cannot sell the property but can sell or mortgage his “life” interest. He can use, sell, or dispose of the income he receives from the property. Do not include the value of a life estate when determining eligibility.
“Dower” is the interest the surviving spouse has in real estate belonging to the deceased spouse. It is only a life estate. It does not exist unless death occurred prior to January 1, 1956. Dower interest is one-third of the real estate for life, which the deceased spouse owned at death. Dower has been abolished in all estates when death occurred after December 31, 1995. (See Dower Table at end of this Appendix.)
If a client owns a piece of property in which someone else also owns a life estate, the “remainder interest” owned by the client is the value of that property minus the life estate.
Such “remainder interest” is not an available resource since the client can do nothing with that property as long as someone else has a life estate in it. If, however, the person who owns the life estate dissolves it or dies, then the total value of the property becomes a resource to our claimant and is considered part of his/her resources.
“Grantor” is the person conveying the property. “Grantee” is the person receiving the property conveyed.
When property is conveyed to husband and wife in both names, the title is called a “tenancy by the entirety”. While both spouses are living, the property cannot be conveyed without both signing the deed of conveyance. When one spouse dies the other spouse owns a “fee simple” title. A “tenancy by the entirety” cannot be disposed of by will. It is not subject to administration in Probate Court and is not subject to any debts of the deceased. The total value would be considered in determining eligibility of the survivor for public assistance.
If the claimant has property, which was willed to him or to his spouse, the exact terms of inheritance must be secured from the will. If the claimant does not have a copy of the will, one can be found in Probate Court Office. The Probate Court file will usually contain an inventory of the real and personal assets of the estate, an appraiser's report of the value of the property, a list of heirs or beneficiaries with their proportionate interests set out, and creditor's claims. The claimant or his spouse may share the inheritance with other persons and hence own only a proportionate share of its net real value, or may have only a life interest in it. If there was no will, it is necessary to ascertain the interest a surviving spouse of the deceased person has in the estate and whether there are surviving children of other heirs.
In determining eligibility for assistance on the basis of ownership of property, the interest of an applicant or recipient in property of any kind acquired by inheritance will be considered at the time it is actually available to him.
Title to real estate passes to and vests in the heirs immediately on the testator's death, although real estate is liable, upon order of the Probate Judge, for any debts against the estate if there is no sufficient personal property in the estate to satisfy the debt. The general principle to be followed in inheritance of real property is that ownership begins with the date of the testator's death. However, if after examination of the records in the Probate Court and discussion with the administrator of the estate, there is a question as to whether the real property (or his interest in it) is actually available to the applicant or recipient, a letter stating all facts having a bearing on the question should be sent to the State Office for administrative determination.
Title to personal property vests in the personal representative of the heirs (administrator or executor) until administration is completed and the estate is fully settled or distributed. Therefore, in determining eligibility with respect to ownership of cash or negotiable securities, determine from the records of the Probate Court and from the administrator of the estate the date on which such property will actually be available to the applicant or recipient.
The processing of deceased estates in the Probate Courts can take a month or longer. This is to provide time for publication of notice to creditors, heirs, and beneficiaries, and to give the executor or administrator time to assemble the assets of the estate, secure necessary appraisals, and proof of creditors' claims, identify heirs, etc. Under some circumstances, the Probate Court may order partial distribution to be made before final settlement.
Under the Probate Code, the spouse or unmarried minor children are allowed as their absolute property free from all debts of the deceased:
The first three of these allowances are absolute allowance and are not included in the distributive share of spouse or child.
EXAMPLE: In an estate of $10,000.00 remaining over and above exempt property and support allowance, the widow can select as homestead any property not exceeding $5,000.00 in value, but would receive nothing further in the final distribution.
After these allowances are made to the surviving spouse or minor children, the remainder of the estate descends as provided in the statutes as follows: