Real Estate - Intestate- Last surviving child

[Tande030513]

Jurisdiction

West Virginia

My mother's parents died in 1980 & 1985. Her only sibling, a sister died in 2015. My mother is the only living child. Her parent's owned a small home and lot in WV that had been their primary residence. The deed was never changed out of her parent's names. Now that her sister is gone she would like to dispose of the home and property. Everyone involved died intestate. Does my mother own the property? There are no encumbrances. The taxes have always been paid.

 

[adjusterjack]

My mother is the only living child.

If her sister had children she may have to share the proceeds with them.

She is going to have to probate the property because she does not own it until the probate court says so.

She needs to hire a probate attorney to clean up a 30 year old mess.

 

[army judge]

Mom might be able to secure title even against the alleged interests of other heirs by the legal theory of ADVERSE POSSESSION.

That could avoid probate.

In WV, as in most states the possession must be both open and notorious over a TEN YEAR consecutive period.

Look into ADVERSE POSSESSION as an easy solution for mother, furthermore in WV taxes need not have been paid.

West Virginia: In West Virginia the period of time for adverse possession must be at least ten (10) years.

West Virginia Common Law Code §55-2-1.

 

[adjusterjack]

Maybe not so easy. Sister died in 2015. OP likely had consent of her sister to reside in the house, or constructive consent if the sister didn't object.

"One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1)That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title." Elder v. Smith, W.VA Supreme Court of Appeals.

Elder v. Smith

I don't think element 1 or 6 would apply if the OP had the sister's consent or lack of objection.

Besides, OP would still have to hire a lawyer and go to court to seek title under adverse possession so it might be six of one or half a dozen of the other with regard to expense and difficulty.

 

[army judge]

Maybe not so easy. Sister died in 2015. OP likely had consent of her sister to reside in the house, or constructive consent if the sister didn't object.

"One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1)That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title." Elder v. Smith, W.VA Supreme Court of Appeals.

Elder v. Smith

I don't think element 1 or 6 would apply if the OP had the sister's consent or lack of objection.

Besides, OP would still have to hire a lawyer and go to court to seek title under adverse possession so it might be six of one or half a dozen of the other.

Ben Matlock, as one of the greatest FICTIONAL TV lawyers was wont to say about his mother, regularly, "Mama would say, ain't nothin' ever easy!"