Legal Question in Wills and Trusts in Georgia

In-laws gave us 5 acres of land 17 yrs ago when we married. They convinced my husb to keep the land in their name in case our marriage ended in divorce. blah, blah. We built our home on this land and have three children together. My mother-in-law died from a short battle with cancer almost 3 months ago. When she died, she had several properties in her name that she was "safe-keeping" for my husband. Found out that she had borrowed over $300,000.00 against them and as of last month the bank had taken all of the property that she had used to secure her debt. She still owes her debtors a lot more money. MY HOUSE, is in her AND my father in laws name. All the taxes are paid and it is totally paid for. Can the bank take this house? Since it is in my father-in-laws name too? Or is he responsible for her debts. I would ask him myself, but needless to say, we don't speak much to each other. Also, is adverse possession, a possibility? Thank you in advance for your time.


Asked on 9/21/11, 2:35 am

2 Answers from Attorneys

Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

There is no adverse possession, as your possession was permissive.

You made an enormous mistake 17 years ago in not seeing a lawyer, who would have told you what a horrible idea this was. You don't own the house. Your husband doesn't own it. And absent some documents that give you any contractual rights, since real estate contracts have to be in writing, any claim you might pursue is weak (and also comes behind the bank anyway).

Your post is a good example of why people need to see lawyers when they do things. That prevents the unsolveavle catastrophe that was created by a failure to seek counsel when it would have helped.

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Answered on 9/21/11, 6:16 am

There is no adverse possession because you have been on the land with the permission of your in-laws. Adverse possession would only begin if the owner of the property told you to leave and you stayed for the requisite amount of time.

You say that your inlaws owned the property and that your mother-in-law is deceased. Did they own the property (if in Georgia) as a joint tenancy with right of survivorship? If so, the land would have passed to your father-in-law upon the death of your mother-in-law. it would not matter how much she owned - your father-in-law would not be liable for it unless his name also appeared on the documents.

I don't know if your father-in-law made a will. If he did, then he could direct that the home be left to you and your husband, If he dies without a will, then the property would go to your husband and any of your husband's siblings, which could be a mess.

Does your husband get on with his father? If so, he needs to prevail on his father to deed the property to you on which your house is located. If he is willing to sign a deed, then go and see a real estate attorney in the county where the land is located. Non-warranty deeds should not be all that expensive.

However, this can only be done if your mother-in-law did not pledge the parcel of property on which your home sits for any of the mortgages. Your mother-in-law could generally only have done this with your father-in-law's knowledge and consent.

Just to be safe, I would go to the recorder/register of deeds' office in the county where the land is located and see what the records say about ownership of the parcel of land on which your house sits and whether the land is encumbered by any notes and deeds of trust/mortgages. Many counties have online records and you may be able to do this online.

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Answered on 9/21/11, 10:40 pm


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