Dear Mr. Premack: My mother and sister owned a home together, and in 2003 my sister passed away without a Will. Her estate was never probated. What can be done to clear the title on my sister's half of the house? My sister was never married and my mother, brother, and I are the only living relatives except that my sister gave a baby up for adoption over 30 years ago. We have heard of a Small Estate Affidavit, but do not know if it would help. If my mother dies before we clear my sister’s estate, may we still use a Small Estate Affidavit? If we don't probate either estate, who becomes responsible for the house? – PJB

Your sister died intestate, so state law identifies her heirs. Whoever they are, they legally became the owners of your sister’s share in that house immediately upon your sister’s death. The only thing missing is legal documentation to tell the public the names of those heirs.

Those state intestacy laws can be overridden by anyone just by the act of creating a Will, a Trust, or using other legal arrangements to pass property. All a person needs to do is decide who should receive which assets, then sign appropriate legal documents to give those decisions binding legal effect. Sadly your sister did not make her own legal plans.

She left a confused situation, compounded by the existence of her child. Despite the fact her child was adopted by another family and may have no emotional attachment to your family, state intestacy law clearly identifies that child as her biological mother’s sole heir.

That child inherits your sister’s half of the house. If a small estate affidavit is prepared, it must list that child as heir. Perhaps that child will elect to gift that interest to her biological grandmother, perhaps not. Your sister, by failing to make her own Will, does not get the outcome that she desired.

Title to the house is split and remains so while your mother is alive and after she dies. Responsibility lies with the owners even if the paperwork has not been properly completed. Your mother should seek a direct consultation with a probate or elder law attorney as soon as possible to begin the paperwork and to open a dialog with your sister’s child.

Dear Mr. Premack: My mother is in her mid-eighties, widowed, and has a rather large estate. She wants me to inherit it after she passes on but says there is no need to have a Will since I am her only child. She has no husband and there are no other relatives. Should she have a Will anyway? Is the probate process easier with a Will, as opposed to remaining without one? – JB

The same state intestacy laws apply, but in your mother’s situation the outcome matches her desire instead of contradicting her desire. You, as the sole child, are her sole heir at law. Why, then should she have a Will?

Here are a few of the many reasons. First, her Will can provide a contingency plan. If you happen to predecease her, her Will allows her to select an alternate heir of her choosing. Second, the probate process is definitely faster and less expensive when a Will exists. With a Will, you can avoid the cost of posting bond and the inconvenience of being supervised by a Court. Third, when she talks to an estate planning or an elder law attorney about her Will, she may get advice on how to transfer assets using other streamlined legal procedures. Paying for a legal consultation will save her far more money than it will cost.