Dear Ms. Allison: My father died in October of last year. He did not have a will. But my sister said that he left everything in her name. If my sister was left everything when my dad died, can I still get half of his assets? She got his $200,000.00 home & most of his cars. Anonymous in Pottawattamie County

Dear Anonymous:

There are several ways to do estate planning. They are not well understood by the general public, particularly by the people doing this type of planning. One way to do the planning is to put peoples’ names on the title to the asset as “joint with rights of survivorship” or to designate the asset as “transfer on death” or “payable on death”. Doing this type of titling and designation totally avoids probate with respect to the assets.

On joint with rights of survivorship titles, the added person owns the property while the other owner lives and continues as owner, once the original owner dies.

With transfer on death or payable on death designations, the added person does not own the property while the original owner lives, but becomes the property owner the moment death occurs. No court, no muss, no fuss. Just file the papers for changing the name on the title.

Many people who do this type of planning don’t realize they are making the person they put on the title a joint owner and that a designation confers no ability to do anything until the original owner is deceased. They think they are setting it up for everyone’s convenience, so that the joint owner can pay their bills and such. If this is what happened, and you can prove that your father was doing it for convenience, you may be able to get the legal effects of the titling set aside (undone). But, even if your father made a Will, a Will only controls property in the name of the decedent alone, or that is made payable to the estate. A Will never controls pay on death and transfer on death designations. Except for a certain type of joint ownership called tenants-in-common, which requires probate, a Will generally does not control joint property.

To try to obtain half of your father’s assets you have two options.

  1. You can hire a Probate attorney to sue for the assets you believe were denied you or,
  2. If you and your sister are willing to resolve this together, you can hire a mediator skilled in probate and estate matters to mediate the inheritance.

Good luck to you sir,

Gale Allison, Attorney

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