QUESTION
Is there any legal way while his sister is still alive for my husband to gain full ownership if she can’t afford to pay for anything towards the home?
Asked on Apr 14th, 2014 on Estate Planning - California
More details to this question:
My husband and his sister inherited their parent’s house when their father passed away January of 2013. His sister in her will is leaving her half of the house to her two sons. I read that in the event of death when two people are on the deed the sole survivor takes full ownership and cannot pass out on to another person. Is that true?
18 ANSWERS
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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No, in California, following an estate distribution in kind, they own the home as tenants in common, each as to an undivided one-half interest, and can each leave their respective half to whomever they choose. Only if they agreed to deed the property to themselves as joint tenants with the right of survivorship would the last one living end up owning it all. If one of them is unhappy with the way things stand, a Petition for Partition and Sale can be filed in the county where the property is located, which, if the petition is granted, forces the sale of the property even when one of them is opposed to the sale. Generally, such a petition will be granted by the court if it is shown that it would be inequitable or result in waste to leave it the way things stand.
Answered on Apr 21st, 2014 at 4:49 PM
3 Awards
It depends how title is held. Without reviewing the title on the deed no one can definitively answer your question.
Answered on Apr 15th, 2014 at 8:51 PM
Edwin K. Niles
It's true only if they hold as joint tenants. If they hold as tenants in common (more likely), each owner can do what he or she wishes.
Answered on Apr 15th, 2014 at 7:15 PM
Whether an interest in real property can be willed away from a co-owner depends upon how the co-owners took title. If the property is held in joint tenancy between the two owners then the surviving joint tenant owns the whole upon the death of the other joint tenant. However, since these parties inherited the property they should not be joint tenants and should be able to will their half as they wish. That is, unless the will under which they inherited stated that that the survivor should get the whole property upon the first death.
Answered on Apr 15th, 2014 at 7:14 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No that is not true, except in the case title is held in joint tenancy, and in this case the title is probably as tenants in common. As a result of probate distribution, and each tenant can do whatever they want with their share.
Answered on Apr 15th, 2014 at 2:50 PM
Amusement Park Liability Attorney serving Richmond, KY
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Morrin Law Office
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Whether or not your husband's sister is able to pass her share to her children depends on whether or not there is a right of survivorship with how the property is held. The exact language of the Will should determine whether or not there is such a right of survivorship. If there is a right of survivorship then the property goes to your husband should his sister predecease him.
Answered on Apr 15th, 2014 at 2:49 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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If the property is transferred to 2 people in joint tenancy then upon the death of the first to die the survivor is the sole owner. If the 2 grantees received the property as tenants in common then they each own a 50% interest in the house and can transfer that interest to whomever they wish zag any time, even by will. The exact wording of the deed will determine the type of ownership. Typically, inherited property is transferred to the heirs as tenants in common.
Answered on Apr 15th, 2014 at 1:02 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Property can be held with right of survivorship, or without. If your husband and his sister hold the property as tenants in common, then sister's half can be willed to her children.
Answered on Apr 15th, 2014 at 12:24 PM
No, it is not true unless they own the property as joint tenancy with right of survivorship. Examine the deed to determine the nature of the ownership.
Answered on Apr 15th, 2014 at 11:45 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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It all depends on how they hold title. If it is as tenants in common, then his sister's share would pass through her estate. If it is held as joint tenants with rights of survivorship, then the last person standing would be the owner.
Answered on Apr 15th, 2014 at 11:44 AM
Creditor's Rights Attorney serving Clayton, MO
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Fluhr & Moore, LLC
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It is not true that when two people who own a home together, the survivor inherits the other's half. If the property is owned as joint tenants with rights of survivorship, then the survivor does so inherit. If the property is owned as tenancy by the entireties, then it is not a matter of inheritance, but of no longer being obligated to share the property with the spouse. If a tenancy in common, then the survivor does not inherit.? The share of the decedent passes to his legatees or heirs. It is very important to see how the property is titled in determining the rights of the survivor.
Answered on Apr 15th, 2014 at 10:37 AM
Not sure what you mean by "cannot pass out on to another person." As a general matter, there are at least 2 ways 2 or more persons (who are not married to each other) may own real property together. 2 persons can own property as tenants in common. As tenants in common, each party owns an undivided 1/2 interest in the property and each party is free to convey their interest to any other party at any time, including leaving their interest to someone after death. Tenants in common is the legally preferred and presumed form of joint ownership. A conveyance to 2 or more persons is presumed to convey ownership to them as tenants in common, unless another form or ownership is clearly intended and stated. The other way 2 or more persons can own property jointly is as joint tenants or as joint tenants with full rights of survivorship. As joint tenant, the owners have a joint life estate with the remainder to the survivor. Upon the first joint tenant's death, the remaining joint tenant automatically becomes the sole owner. A party owning property as a joint tenant has no ability to leave their interest to another on death because their interest ends upon their death. A joint tenancy is created by a conveyance to A and B, as joint tenants or as joint tenants with full rights of survivorship. A conveyance to A and B, creates a tenancy in common. Absent something unusual, a gift of real property to 2 persons by a Will will result in the 2 persons owning the property as tenants in common. As tenants in common, each tenant is free to convey and leave their interest to whoever they want.
Answered on Apr 15th, 2014 at 10:36 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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It can be true, but probably not in this case. When a person leaves property in a will to two or more people, it is as tenants in common. That means that each party owns an undivided interest and can bequeath his or her interest. If the person who died wanted it to be different, I suppose he could have said "to my son and daughter as joint tenants." Then the survivor would have all of it. Now as for not paying anything toward the home, your sister will owe half of what your husband pays. So I suppose he could sue her and get a judgment lien on her interest or he could find out what she would accept to sell her interest. You need to talk with local counsel about your husband's rights.
Answered on Apr 15th, 2014 at 10:36 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I would suggest that you take all the paperwork, and most importantly the deed to the property, to an attorney for review. How the property is titled will determine whether or not the property reverts to the soul and last survivor, or whether it is to be passed to the other party's estate. Additionally, if there are ongoing costs there should be some means of fairly accounting for them between the two owners, and some form of reimbursement system set up. I would suggest that you speak to an attorney regarding your issues.
Answered on Apr 15th, 2014 at 10:34 AM
It depends if the property was held as tenants in common or joint tenancy. In the latter the survivor takes the interest of the decedent.
Answered on Apr 15th, 2014 at 10:31 AM
If your husband and his sister own the property as "joint tenants", he will inherit her share of the property when she dies (unless he dies first). If they own it as "tenants in common", she can leave her share to whomever she chooses. Presently, your husband can offer to buy some or all of her share of the property if she can't afford to make the payments.
Answered on Apr 15th, 2014 at 10:30 AM
Only if the property is held in joint tenancy with the right of survivorship as opposed to owners in common. You need to check what the title to the deed says.
Answered on Apr 15th, 2014 at 10:30 AM
2 Awards
It depends upon how title is held. The inheritance is separate property of both your husband and his sister, and she has every right to will her 1/2 to whomever she chooses. Your husband could buy her or her children out if they will agree to it.
Answered on Apr 15th, 2014 at 10:18 AM