DEAR BENNY: My mother and her boyfriend lived together for 18 years. He owned the house by himself. He has two surviving adult children. He always told me he wanted my mom to have everything. He did not have a close relationship to his children.

My mother’s boyfriend recently died of a massive heart attack, and did not have a will. His son now shows up and is trying to have my mom evicted from her home and take all the contents. She has all bank statements to show where she has paid taxes, utilities, etc., for the past seven years (when she opened her checking account). Does my mom have any rights to her house and the contents? My mom is 67 years old. –Tonia

DEAR TONIA: You need to consult with an attorney immediately. You advised me in your email that your mother has a lawyer who apparently is not doing anything for your mother. If that’s the case, get another counsel.

From a legal point of view, since your mother’s boyfriend did not have a last will and testament, the laws in your state will control who gets the house. These laws are called "the laws of intestacy" — meaning that in the absence of a will, the law dictates how the property of the deceased is distributed. Generally speaking, immediate relatives (a wife or children) will inherit.

However, regardless of whether there was a will, in most states his estate has to go through probate. That would give your mother an opportunity to explain to the probate judge the situation. While I doubt that your mother will end up owning the house, the court may (1) allow her to live there the rest of her life; (2) give her plenty of time to move out, and/or (3) allow her to be reimbursed for some of the money she spent taking care of the house.

In Washington, D.C., where I practice law, there is a concept called "common law marriage." That means that if a couple live together for a long period of time and hold themselves out to the public as being married, the court will consider them married. If so, then your mother — as the wife — would be entitled to claim under the laws of intestacy.

I know that not too many states accept the "common law marriage," but your mother should raise this with her attorney.

DEAR BENNY: In your columns, you always use the words "deed of trust" when you are referring to a mortgage. Is there a difference between these two? –Harry

DEAR HARRY: Yes and no. Oversimplified, both are documents that secure a lender in case their borrower goes into default. However, to my knowledge, some jurisdictions (such as Maryland and Washington, D.C.) use deeds of trusts and not mortgages.

The basic difference is that when there is a mortgage and the borrower goes into default, the lender must go to court to foreclose on the property. This is known as a "judicial foreclosure." With a deed of trust, the borrower — immediately after getting the deed to the property — deeds the property in trust to a trustee (or trustees) selected by the lender. The deed of trust contains a "power of sale," giving the trustee the right to foreclose without having to go to court. This is known as a "nonjudicial foreclosure."

Space in this column is not large enough for me to go into an explanation of the mortgage mess that we have in this country. Suffice it to say, there is a company called MERS (Mortgage Electronic Registration Systems) that is a private mortgage registry, allegedly claiming title to hundreds of thousands of mortgages throughout the country. There have been a lot of court cases over whether MERS is the true owner of those mortgages. Some courts have upheld MERS, others have not. Ultimately, the U.S. Supreme Court will tackle this issue. Stay tuned.

DEAR BENNY: My aunt is 87 and her home is paid off. It is worth approximately $290,000. She currently has Alzheimer’s (can’t remember things). The property was put into a living trust to be divided among her five grown children about 10 years ago.

The problem is one of the grown children recently recorded a grant deed signed by my aunt to himself and his wife for the property. They are currently caring for her. The trustee (his brother) never authorized this. She had (I am guessing) a revocable living trust.

What steps should be done to correct ownership back to the trust? Is this some kind of elderly financial abuse?

I have no financial gain or loss in this problem, but I would like to make sure that what she wanted when she was healthy is done. –Mike

DEAR MIKE: I don’t know if this is "elderly financial abuse," as I suspect that the persons who now claim ownership thought they were entitled to the house because they are caring for your aunt.

However, one or more of the trust’s beneficiaries should immediately consult an attorney versed in estate and real estate law. I don’t think you should be involved, since you are not a beneficiary and do not have what we lawyers call "standing" — i.e., the authority to move forward on this issue.

The lawyer will get a copy of the deed that allegedly was signed by your aunt. The bottom line is that the trustee must sign any deed for property in a trust. The lawyer will also want to review a copy of the trust. If, for example, the trust was revocable, and your aunt did, in fact revoke it, then the transaction may be valid.

However, if these documents were signed when your aunt was not competent (such as based on her Alzheimer’s condition) — and a doctor is prepared to certify that when the documents were signed she was not competent to enter into any such transactions, then the deed can be set aside.

However, before engaging legal counsel I recommend that all of the remaining beneficiaries talk to the two people who claim ownership. Get some facts as to what was done. Perhaps — especially if threatened with litigation — they will return the property to the trust.

One note of caution: Many people create trusts but do not formally transfer their property into the trust. If that is the case, then the trust has no application to the property ownership.

DEAR BENNY: My neighbor has a Bradford pear tree that is probably about 15 years old. The other night during the heavy wind a branch of the tree broke off, exposing the trunk. I advised my neighbor to take down the tree because it will continue to drop branches and die. He was not going to do that. Now the heavier branches are leaning towards my property. I would like the name of the law that addresses encroaching tree branches so I can advise him that the tree will be his responsibility if it falls on my property. –Lisa

DEAR LISA: Unfortunately, the answer depends on where you live. Although "tree law" is evolving throughout this country, there are two different approaches that states have adopted.

First, there is the "Massachusetts rule." This states that while you have the absolute right to cut roots (or trim branches) that overhang or encroach on your property, the tree owner has no liability should the tree cause damage to a neighbor’s property.

Second, there is the "Hawaii rule." Back in 1981, the high court in that state held that "when trees cause actual harm or pose an imminent danger of actual harm to adjoining property," the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots. And if this is not done within a reasonable period of time, the neighbor "may cause the cutback to be done at the tree owner’s expense."

However, to my knowledge, in every state, a neighbor has the absolute right to trim overhanging branches and cut roots that encroach on their property. The neighbor cannot, however, trespass onto the next-door property nor demand reimbursement for such actions.

I had a similar case several years ago. The tree on my client’s neighbor’s land was dropping large walnuts on my client’s backyard, and the tree’s roots were damaging my client’s garage. I filed a lawsuit against the neighbor, claiming that the tree was a private nuisance. We settled in court, because the judge was sympathetic to my position.

Your attorney should tell you which rule applies in your state. But at the very least, the attorney should send a strong letter to the neighbor (by certified mail, return receipt requested and by regular mail) advising him of the problem and putting him on notice should there be damage or injury to your person or property.

One other suggestion: Arrange to have a certified arborist inspect the tree (he cannot enter the neighbor’s property) and if it is determined that the tree is not healthy, a copy of that report should be included at an attachment to the attorney’s letter.

Show Comments Hide Comments


Sign up for Inman’s Morning Headlines
What you need to know to start your day with all the latest industry developments
By submitting your email address, you agree to receive marketing emails from Inman.
Thank you for subscribing to Morning Headlines.
Back to top
Keep up-to-date on tools and tactics to impress your clients and outshine your competition with the 2022 virtual bundle.Register Now×
Agent Appreciation Sale: Inman Select for only $85.CLAIM OFFER×
Log in
If you created your account with Google or Facebook
Don't have an account?
Forgot your password?
No Problem

Simply enter the email address you used to create your account and click "Reset Password". You will receive additional instructions via email.

Forgot your username? If so please contact customer support at (510) 658-9252

Password Reset Confirmation

Password Reset Instructions have been sent to

Subscribe to The Weekender
Get the week's leading headlines delivered straight to your inbox.
Top headlines from around the real estate industry. Breaking news as it happens.
15 stories covering tech, special reports, video and opinion.
Unique features from hacker profiles to portal watch and video interviews.
Unique features from hacker profiles to portal watch and video interviews.
It looks like you’re already a Select Member!
To subscribe to exclusive newsletters, visit your email preferences in the account settings.
Up-to-the-minute news and interviews in your inbox, ticket discounts for Inman events and more
1-Step CheckoutPay with a credit card
By continuing, you agree to Inman’s Terms of Use and Privacy Policy.

You will be charged . Your subscription will automatically renew for on . For more details on our payment terms and how to cancel, click here.

Interested in a group subscription?
Finish setting up your subscription