AboutLisa Carlson Expertise Funeral Law. Having written a 640-page book on funeral law for consumers with state-by-state information, I am very conversant with consumer rights in this regard: What are the laws on disposition of cremated remains? Is embalming required? Do I have to use a funeral home? Can I have a home wake? Is it a state law to buy a vault? I prepaid for a funeral but changed my mind. They won`t give me all my money back. What can I do? . . . etc.
Question QUESTION: Hi there,
I wondered if you could advise me on behalf of a friend who has just lost his son aged 37 in a tragic accident. he had been separated from his common law partner of 18 years and was living elsewhere while the sale of the property went through with an agreed split of half the proceeds each, unfortunately his sudden death prior to the contracts being signed has left my friend rather concerned as he has discovered that she had been having an affair for over a year, and has told their two children (teenagers) that they will not get a penny from the sale of the house. Could you please explain what it means to predecease the intestate, as I would assume that at least half of the sale proceeds from the house should be split between the separated couples children.
I hope that you might be able to help us
kind regards
NJ
ANSWER: It depends on how the deed was written-- tenants-in-common or joint tenants with right of survivorship. She would get all the funds if it's written as joint tenants. Only half as tenants-in-common, with his children getting his share. If her name isn't on the deed, then the children would get it all.
---------- FOLLOW-UP ----------
QUESTION: Hi there, Thank you so much for getting back to me so promptly.
I am not sure about how the deed was written, what is teh difference? they were not married and lived together as common laws only to find that she had been having an affair with someone only three years older than her eldest son, hence the break up. however there is evidence that they were separated and he was living elsewhere while the sale of the property went through, it was just really unfortunate that he passed away before the contracts were signed, which the transfer will happen this week I beleive - do you know if the proceeds will be subject to probate now?
Answer I would urge your friend to go to the town or county where deeds are recorded and get a copy of the son's deed, assuming that the house was in the name of the son or the son and girlfriend, not just the girlfriend. As I said before, if it is written "joint tenants" then the girlfriend will get it all if her name is on the deed. If it was in the son's name only or if it was "tenants in common," OR if there are other assets such as a life insurance policy, bank account, stocks, IRA, anything like that, the father should petition the court to be the administrator of the estates in order to protect the interests of the children. Given the estrangement, I feel certainly that's likely to be granted, even if the girlfriend is their mother, too.
