I am one of 10 children. My oldest brother is my Dads natural son but not my Moms. My dad passed away over 10 years ago. My Mother passed last year and left no will. We have spoken to a lawyer and all 9 of my Mothers natural children are in agreement that we should transfer the house into one person name using (SMALL ESTATE AFFIDAVIT FOR TRANSFER of REAL PROPERTY)and that one person would sell the house and split the money 10 ways. My stepbrother does not agree. Can we move forward without him? Does he have any legal say in the matter? Thank you for any help.

Seems to me a better way to handle this is to simply have the executor of your mom's estate do the selling of her property and distribition of funds to the heirs, per the rules of intestacy for your state. If you transfer the title to one of the siblings as you propose then technically you are violating the law, since your mother's estate was not properly distributed to the heirs. And when that sibling sells it and distributes the income technically that sibling is making a series of gifts to all of you. This may trigger a gift tax complication and raises possible issues such as who pays for things like repairs, utilities, real estate taxes etc. during the time your sibling "owns" it and before he's able to sell it. Why not just handle all this through the estate and avoid these complications?

As for your half-brother - assuming that the property was titled in your mother's name, and she died without a will, then in most states her assets would be split among her issue and/or their survivors. Your half-brother is not her issue, so he gets nothing.

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Originally Posted by frankl

I am one of 10 children. My oldest brother is my Dads natural son but not my Moms. My dad passed away over 10 years ago. My Mother passed last year and left no will. We have spoken to a lawyer and all 9 of my Mothers natural children are in agreement that we should transfer the house into one person name using (SMALL ESTATE AFFIDAVIT FOR TRANSFER of REAL PROPERTY)and that one person would sell the house and split the money 10 ways. My stepbrother does not agree. Can we move forward without him? Does he have any legal say in the matter? Thank you for any help.

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If I correctly understand what you are saying, this "stepbrother" is the son of your father but not your mother? That would make him your half brother, not your stepbrother. If your mother had re-married after you were born and had children by the new husband they would have been your step-siblings.

What state are you in? Small estate affidavits work differently from state to state. Many states, for example, don't even allow transfer of decedents' real property by such an affidavit.

When your dad died, am I correct in assuming that the property was owned jointly by your parents? If so, it would have passed to your mother. So now, it belongs to her estate. Her heirs, under most if not all intestacy statutes, would be her children. Your oldest brother, not being her son, does not inherit, and you can settle the estate without his having any say in the matter.

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Originally Posted by ebaines

... And when that sibling sells it and distributes the income technically that sibling is making a series of gifts to all of you. This may trigger a gift tax complication and ...

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Yes, although that may be avoided by arguing that the transaction was simply a device to avoid probate complications. But a more serious problem is this: if there are any creditors of your mother out there, they are entitled to be paid. If I were representing somebody who found out about this several years down the line, I would look into the possibility of filing suit against all of you.

Thank you for the quick response! We are in Arizona. The house is only worth about $90,000 and my Mother still owes about $40,000. Yes when my Dad died the property did pass to my mother. You are right he is my half brother. None of us think of him as a half brother and we all fully intend to give him one tenth of the sale of the house. He just has some medical and mental health issues right now.

Thank you ebaines! That's very good to know. How do we know who the executor of my mothers estate is?

Since your mother died intestate, and hence did not specify an executor, one needs to be appointed by the probate court. It's often the oldest sibling, but could be any one of the siblings who lives close by and is relatively familiar with handling financial matters. Once an executor is appointed that person is charged with handling all your mother's estate dealings - like paying off any outstanding bills, closing out checking accounts, and selling off the assets or otherwise distributing them to the heirs.

We have used my mothers insurance money to pay all of her known creditors. Is there more we need to do?

Oh OK. Does that mean we must go through the Probate process?

A few things,

1. if the life insurance was given to one specific person, it does not belong to the estate and did not have to be used to pay her debts. It would have just belonged to the person named on the policy. ( unless it was written to be given to the estate)

Next no you can't just sign it over to one person, who could have course just cheat everyone out of the money, and who then would have the tax issues of the sale of the home. The house as noted needs to be sold in probate by the executor and then the money divided.

frankl - please do not use the "comment" feature to ask follow-up questions, but use the answer box instead.

Yes - the estate must go through the probate process. This assures that any creditors still out there have an opportunity to make a claim against the estate before it is ultimately divided up to the heirs.

Thank you all for the great help!