Inheriting a house without a will

Key points about intestate inheritance of property

• The house, or the share of it you inherit, is now yours to do with what you wish, just as if it was gifted to you in a will.

• It is very common to inherit a house with others, particularly siblings. You will all have to agree whether to keep it, sell, or rent it out.

• If one sibling wants to live in the house, they will have to agree to buy the others out.

• If a non-heir is living there, things can get complicated. You can evict them, but try to approach the situation with compassion.

If someone in your family has passed away and did not leave a will, you may turn out to be one of their heirs, even if you were not expecting to inherit anything. While a surprise inheritance can seem like a windfall, especially if you become the new owner of a large asset like a house, it can also cause a lot of complications, which can be a lot to deal with during such an emotionally difficult time.

The intestate probate process

When someone dies without a will, or “intestate,” the court appoints an administrator for their estate. This is the person who will manage the probate process, ensuring that all debts and fees are paid and then distributing what remains to the heirs. 

The courts will also determine who inherits the estate, following what are known as intestate succession laws—state probate laws that identify the correct heirs when no will exists. Generally, only spouses, registered domestic partners, blood relatives, and adopted children can inherit; unmarried partners, friends, and charities cannot inherit, even if the person had intended or promised to leave bequests to them. If there is no will, intestate succession laws govern the entire estate.

As with anyone who inherits or is bequeathed a house, you can choose to keep it and live in it, keep it and rent it out, or sell it. Your decision will likely depend on your financial situation, your current living situation, and whether there are other heirs. When someone’s children inherit their property, siblings usually receive equal shares, and they will all have to agree on what to do with the house. 

Taking ownership of an inherited house

To take ownership, you must file a new deed with the appropriate authority, transferring the ownership of the house to yourself or you and any other heirs. This is done with the county in which the house is located, often through the office of the county clerk. The most common type of deed is a general warranty deed, which certifies that you are entitled to own the property and any liens have been satisfied (e.g., unpaid property tax or back mortgage). If you don’t officially take over ownership, you can still live there or use the property, but you can't sell it or use it as collateral for a loan.

Typically, each heir must submit a declaration, called an heirship affidavit, stating that they are a legal heir to the property, of legal age, and of sound mind. The new deed must contain the proper legal description of the property, and all the heirs must sign it in front of a notary. Then the heirship affidavits and the official deed are filed together with the appropriate county office.

If someone is living in the house

Sometimes, especially if your loved one died unexpectedly, someone who is not an heir will be living in the house, such as your loved one’s unmarried partner, a roommate or tenant, or a relative who did not inherit.

If this person does not want to leave on their own, the administrator can act to evict them during the probate process, especially if the heirs want to sell the house and split the proceeds, or if one heir wants to buy out the others. But if the matter is not resolved during probate, the heirs will have to agree on a course of action and follow through on their own.

You will have to decide what is best for your situation. You can let the person stay under the terms they already had. You can start charging them rent, if they weren’t already paying. You might set a realistic timeline for the person to move out. Or you can simply ask them to leave, and if they won’t, begin eviction proceedings. To make matters more complex, in some states, a person who has lived in a house for a certain number of years and has contributed to its physical upkeep has some legal standing and may be able to contest your move to evict them.

In order to work out a less fraught solution, take stock before approaching the person and try to find some compassion for what they’re going through. They are likely just as shaken up by the circumstances as you are, and having to move out of their home can add pain to an already difficult situation. Be kind but firm, and try to work out a solution and a timeline that work for all of you. Even if you don’t get along, make sure you are acting in your best interest and that of the other heirs, rather than trying to get back at the person for past conflicts or misunderstandings.

Sometimes it’s one of the heirs who doesn’t want to move out, often a sibling who was living with a parent. As a part owner of the house, they can continue living in the house indefinitely; the other heirs have an equal right to move in, but they cannot force any of the others to move out.

Generally, what happens in this case is that the sibling living in the house agrees to buy the others’ shares. If they already have the resources to buy their siblings out, or can obtain a mortgage for their shares of the property, it can be a relatively simple transaction. In some cases, rather than involving lenders, the other siblings might agree to a promissory note that will allow the sibling staying in the house to pay for their shares in monthly installments.

Unfortunately, the sibling’s unwillingness to leave the house may be connected to their grief, making it hard for them to come to an agreement about financing. It is recommended that you talk to a lawyer or mediator who may be able to help everyone find a mutually agreeable arrangement. 

Otherwise the only option the other heirs will have is to file a lawsuit for partition, which will force the sale of the house so everyone can get their share. In this case the judge will typically assign a third party to deal with the sale so that everyone is treated fairly, but this independent referee will get paid out of the proceeds, and thus everyone’s share will be reduced. This is why it is almost always in everyone’s best interest to come to a mutual agreement.

Profiting from the house   

Once you inherit a house it is yours to do with what you wish. If you sell it, the proceeds are yours. If it has increased in value, you will pay capital gains taxes on the difference. You will only be taxed based on the rise in the home’s value between the date on which your loved one passed away and the date on which you sell it. The amount it was worth when your loved one bought the property themselves is irrelevant, so any capital gains they earned on the house and passed on to you are not taxed.

Until the house is sold, you will have to pay the mortgage, taxes, and maintenance, invest in any needed repairs or renovations, and clean out the home and stage it for sale. Keeping it and renting it out can provide income and some tax advantages, but you need to be able to assume or refinance the mortgage (if any) and afford taxes and upkeep. 

Inheriting a house unexpectedly can be an incredible financial and emotional blessing. But it can also open old family wounds or create strife in personal relationships. What's more, you may feel guilt and other complicated emotions about the property, particularly if you have inherited it from a relative that you were not necessarily close to because they did not have a will. Or if you were very close, your grief may make it difficult to feel fully at home in a property that was once theirs. These feelings may cloud your views of your financial future, but if you can acknowledge and accept them, you will be able to move forward with clarity and compassion.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.