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Real estate Q&A: My daughter died without a will. How do I prevent foreclosure on her home?

Q: I need to transfer my late daughter's home into my name. She did not have a will. She was the only name on the deed, and now my son-in-law is living in the house and not paying the mortgage. We are trying to avoid foreclosure. What can we do? – Rosemarie

A: Unfortunately, there is little you can do. Since your daughter did not leave a will, the laws of "intestate succession" will control the situation. Under these rules, the property will most likely go to your son-in-law and any children that your daughter had.

When someone dies without leaving a will, the law will assume their intention, and since most people want their spouse and children to inherit their property after they die, the law makes this a reality. Besides these rules, her husband will have special spousal probate rights to a share of her property. With these rights, even had there been a will making no mention of him, he would still be entitled to a share of her estate.

These laws were created to protect a widow or widower from being disinherited by their wealthy deceased spouse and left destitute. Your situation is one of the many examples of why it is essential to have a proper estate plan.

Your first step should be talking to your son-in-law to see why he is not paying the mortgage. There may be, at least to his mind, a valid reason, or he may not care about that house after losing his spouse and is using this as a chance to regroup before moving on. If this does not work, you should speak to a probate lawyer to see if there are any special considerations in your situation that might give you a claim to the property.

Hopefully, you did not cosign on the mortgage loan without taking precautions to protect yourself in the event the unthinkable happened. While it is rarely a good idea to cosign a loan, if you absolutely must, it is crucial to protect yourself in case the person you are trying to help decides not to pay or is just unable to do so.

Owing money on a property while having no control over it is one of the worst positions to be in, and can be avoided with a bit of proper planning upfront.

ABOUT THE WRITER

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.

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