What happens to property if the homeowner dies without a will?

Here’s my question: How do I get the home transferred into my name? My mother didn’t want to leave her home to my brother. He knows this, and so far it hasn’t been a problem. But because my mom didn’t have a will, I don’t know how this will play out.

I’ve spent a lot of time and money making repairs, and paying the bills and property taxes. My brother is always welcome to visit, but my mom felt she couldn’t trust him to keep the home in the family for generations to come. What should I do?

A: You’ve waited two years to ask this question, and we have no idea why. Well, it’s past time for you to hire an attorney and get this done. The more time passes, the more things (and people’s minds) can change.

It’s quite unfortunate that your mother never wrote up a will, put the property into a living trust or took any other measures to ensure the property would become yours once she died. You need to hire an attorney who can assist you in having the title to the home transferred into your name. The process will likely require your brother’s cooperation, and your brother may have to formally decline his share of the property. The legal term is that he would “disclaim his inheritance.”

You should know that now that your mom has passed, the title to the home would normally transfer as required under the laws in the state in which the property is located. Usually when a person dies, the property they own goes to their spouse and children. If they don’t have a spouse, then to their children. But there are some differences in each state’s estate laws, and you need to ask the attorney what the law provides for in your state.

The attorney may need to open an estate in probate court to have the title to the property transferred from your mom’s name into your name. Once the probate case starts, your attorney will ask your brother to sign some documents that would allow the home to go into your name. Given that you’ll need your brother’s cooperation through the process, you should get this done as soon as possible.

When you’re talking with the attorney, you might ask if it’s worth setting up a living trust for the property. Since this is a property your mother wanted to stay in the family for generations, you could name yourself as trustee and beneficiary. If you want, you can name a successor beneficiary, so the property would flow to that person automatically upon your death. Since you’re going to all this trouble now, it would certainly make future transfers easier.

A final reminder: People can and do change their minds for all sorts of reasons. If you don’t take care of the paperwork as soon as possible, it’s possible that your brother might want something from you in exchange for the home. Then, you’d have to start negotiating how much you have already paid in maintenance and upkeep costs versus the value of the property the day your mom passed.

So, while he is in agreement that the property should belong to you, secure his cooperation now and have the title transferred according to your mother’s wishes.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)