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If your boyfriend died and his brother is trying to take the house, the rights and obligations of the parties will depend on a number of factors: did your boyfriend die with a will or not; or did you purchase the house jointly with both your names in the deed.
In His Own Name or Co-Owned
The first question, when someone dies, is how was the property owned. If the real property was in the sole name of the decedent in the deed, the presumption is that the decedent clearly has the power to dispose of the property on his own, without need of any other person’s consent. If the property is co-owned with another person under tenancy-in-common, the estate can only receive the decedent’s proportionate interest. If the property is co-owned under joint tenancy with rights of survivorship, the death of the co-owner will not transfer the property to the brother or girlfriend, but to the surviving co-owners.
Will or No Will
If the property was solely owned by your boyfriend, then the next question is whether he died with or without a will. If he died with a will, tbe will prevails. Who he left the house to in the will shall be the recipient of the house. If he died without a will, the house is distributed to his heirs. Who your boyfriend’s heirs are would depend on state law. In New York, the heirs of a person who dies without a will is dictated by EPTL § 4-1.1, in the following order, the former excluding the latter class: the spouse and issue; parents; issue of parents (siblings), grandparents, and great-grandchildren of grandparents.
The Administrator
When a person owns real property, such as a house, and dies without a will, the house will usually be distributed to the decedent’s nearest surviving relatives, as provided in EPTL § 4-1.1. Who the administrator is, however, is governed by SCPA § 1001. Under this provision, the surviving spouse usually has preference over the surviving children in becoming administrator. This usually becomes an issue in cases of blended families where the surviving spouse is not the mother of the surviving children. This administrator will then have the power to sell the house to interested third parties.
When you boyfriend dies, it is difficult to have a stake in your boyfriend’s party unless you have a signed agreement in place or you trust state intestacy law to distribute your boyfriend’s property. For this reason, in case of any doubt, it is important to get the advice of experienced legal counsel to see where you stand in the hierarchy of things. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
