Legal Tip 374: Death and Families Forgetting Who Owned What

Imagine a situation where someone in the family, such uncle Fester, who died say 40 years ago and left the house that he owned in his will to nephew Homer. Aunt Patty had been living in the property so Homer didn’t do anything about the estate, the house was not transferred into Homer’s name and it was left in the name of the deceased uncle. Homer gradually forgets about the house. Patty pays the rates and maintains the property as if it was her own.


Homer dies and his will doesn’t specifically mention the property. Other family members don’t know the details of that part of Homer’s life.

It has been 15 years since the death of uncle Fester at this point.

What happens to the property?


Technically Homer is, or was, the beneficial owner of the property so it should pass via his will. But no one knows this.

Patty has lived there for 15 years so she could claim adverse possession and have the title transferred to her name and then pass it via her will. Or if Patty dies her executor might be able to make this claim for the estate. Patty might leave it via her will thinking she does own it. The recipient might be happy and then immediately sad when they find out she doesn’t own it. They might have to commence court proceedings to try to get ‘their’ property.

Whatever happens it could be messy!


This sort of thing does happen though, there are many stories about houses not having been transferred after death.

 

More common is not forgetting but being able to prove the will and estate issue to OSR so they want duty applied to a old unregistered transfer. Timely dealing with beneficiary assets is wise to avoid that problem. Aftre 20 years the law firm has closed. The probate records are gone. No copies of wills can be found. OSR says how can Patty's executor sell an asset owned by a long deceased person... Patt's estate needs to pay duty before her estate asset can have any dealings.