I married a man who had a small estate. He had four children, I have two children. He put my name on the deed. We took out a second mortgage...

Question

I married a man who had a small estate. He had four children, I have two children. He put my name on the deed. We took out a second mortgage and built on the house. If he dies, can his children take some of the property and make me leave my home? This is a case where there is no will. what are my rights to property? Conversely, if I die first, do my children have any rights to property?

Answer

No, not if the home is in NC and is jointly owned by you and your husband as a tenancy by the entireties. The deed should read under the heading Grantees as to your husband and you, as husband and wife or similar words to that effect.

Regarding inheritance, it is inexcusable for you and your husband NOT to have wills. In addition, you both need financial powers of attorney, health care powers of attorney and living wills/advance directives. These packages are more affordable than you think - I would be pleased to review your situation and give you a quote. Failing that, I suggest you get a do-it-yourself will kit, but I am not recommending any in particular. These kits may or may not be accurate for state law (some packages contain blatantly incorrect information for the state where the person lives) and even if the kits are ok, you still run the risk of possibly messing something up if you do your own will.

You and your husband have a blended family and its really important that you have wills. as things stand now, if you die first, the house (assuming the house is now owned as a tenancy by the entireties or joint tenancy with right of survivorship) would pass to your husband and when he dies, his property (including the house) will go to HIS children solely. Unless he has adopted your children, nothing will go them when your husband dies.

Conversely, if your husband died first, then the property would pass to your children solely and your husband's children would get nothing (assuming you have not adopted his children). Step-children have NO rights of inheritance from a step-parent.

Under NC law, if there is no will, the surviving spouse generally inherits the first $30,000 - $50,000 plus 1/3rd of worth of personal property and 1/3 of any land owned solely by the deceased spouse. The deceased spouse's children get the remaining 2/3rd (this is where a deceased person dies with a spouse and 2 or more children).

Of course, this only applies to probate assets. Many assets are non-probate assets. Joint bank accounts, life insurance/annuities, pension/retirement benefits, any other beneficiary designated asset or land owned as a tenancy by the entireties/joint tenancy with right of survivorship all pass outside probate.

So it depends of what you own and how its titled.

If you and your husband or even just you are interested in discussing your estate planning needs, please email me at [email protected]/* */