How can my mom change title of condominium if it's under her and my brother's name and my brother passed away?

Question

I am speaking on behalf of my mom and my brother who is the legal owner to the deed of a 1 unit condominium. House is fully paid. The question is the title granted on the deed is my Mother and my brother. However, recently my brother died. Now I don't know if it is a problem but the ownership of the deed is under for example: John Doe "AND" Jane Doe (Mother). If John Doe is dead and the deed is under "AND" ownership instead of "OR", can my mom in this case (Jane) can be entitled to full ownership of the deed without legal action to change the name? Would there be a problem? I just want to know what is the legal process of resolving this? I hear people saying that it will go to PROBATE? What is that? Can you clarify my question?

Christine James · Answer

The manner in which title is held is critical.  If joint tenants, your mother can avoid probate.  If tenants in common, the 50% share may need to go through probate depending upon the value of that 50% share and who your brother's heirs are.  If the title is silent (just has mom and brother's name and nothing else) it is presumed tenants in common and you will need to seek the advise of an attorney.  If joint tenants an attorney can help you with a simple affidavit to clear your brother's name.

Thomas Edward Gates · Answer

To transfer the 50% ownership, his estate must be probated.  This is a process where the creditor's may file claims against his estate.  An Executor will be appointed by the court to manage his estate.  Once the creditors are paid, the Executor can distribute the remainder of the estate to the beneficiaries.  A Personal Representative Deed will be issued, transferring the 50% ownership to your mother.

Edwin K. Niles · Answer

It depends on whether or not it says, as joint tenants.  If so, it's a very simple process.  An attorney would usually bill for one hour (around $300)..

James Weiner · Answer

How you proceed depends on the followup wording.. e.g. not just John Doe (son) and Mom Doe (mom), does it say as Joint tenants with rights of survivorship or as Tenants in Common? Contact a real estate attorney if you do not know the difference.

Randall Romei · Answer

In Illinois the "and " and the "or" between the names of the two owners is not dispositive of the type of ownership for real property. When looking at the deed, examine the clause conveying the property to the grantees. If that clause includes the phrase "not as tenants in common but as joint tenants" or similar, then the property is owned in joint tenancy. If there is no phrase that indicates the property is not held as tenants in common then the ownership is divided. Tenancy in common is the default ownership where there are multiple owners unless excluded. If your mother and brother are joint tenants than the survivor owns the entire parcel. In that case your mother is able to deal with the property, she may have to file a deceased joint tenant affidavit and a certified copy of the death certificate. If the ownership is as tenants in common then upon your brother's death your mother owns an undivided 50% interest in the property and your brother's estate owns an undivided 50% interest in the property. A probate estate must be opened to deal with the share owned by your brother. A probate is a legal proceeding wherein a representative for the deceased is appointed by the court to collect the assets owned by the deceased and distribute those assets, either as directed by the approved will of the deceased or in accord with the statute on descent and distribution if there is no approved will.

Ben Liu · Answer

Unless the condo is in joint names with right of survivorship, your mother will need to probate the son's estate. The son's half will go to his heirs.

John Brennan · Answer

In Michigan if it was jointly owned it is a matter of recording a deed in your mother's name only with a death certificate attached. If it was owned in common your brother's one-half undivided interest will go to his estate and have to be distributed in accord to his will or the law by the probate court. See an attorney with the details.

James E. Reed · Answer

There are 2 types of concurrent ownership that would apply in this instance.  One type is a tenancy in common the other is a joint tenancy.  A tenancy in common is created by a deed conveying the property to "mother and brother" without anything more stated or to "mother and brother as tenants in common."  If a tenancy in common was created, then your brother's estate owns an undivided 1/2 interest in the condo and probate of his estate will be necessary.  The terms of his Will or the laws of Michigan (if he has no Will) will determine who will end up owning his 1/2.  A joint tenancy is created by a deed conveying the property to "mother and brother as joint tenants with full rights of survivorship" or to "mother and brother as joint tenants."  If a joint tenancy was created, then your mother now owns the entire fee title to the condo because she survived your brother.  When she wants to convey her interest, all that needs to be done is to record a certified copy of your brother's death certificate.

Dara J. Goldsmith · Answer

If it's a joint tenancy, an affidavit terminating joint tenancy would be executed by here with a certified copy of his death certificate attached and recorded in the county where the property is located. An attorney may assist you preparing such a document.

James Frederick · Answer

It *sounds like* the condo was set up as a "tenancy in common." That means that when any owner passes away, his or her share needs to go through probate. It would then pass to his or her heirs, under Michigan law, or according to the terms of his or her Will. This is unfortunate, under the circumstances of your case, as it sounds like your mother will need to pay for probate expenses that otherwise would not have been needed.  If the title had read, "as joint tenants with rights of survivorship" or "as joint tenants and not as tenants in common," then your mother would not need to go through probate.  Probate is the court process of giving someone legal authority to transfer title of a deceased person's assets, (in Michigan, we call them personal representatives; in other states, they are referred to as executors). I have a detailed description of the process on my website. You can also look at the website for the Oakland County Probate Court, as they have a very good pamphlet on what is involved.

Erven Nelson · Answer

I would need to look at the deed to be sure, but it appears that your mother and brother?s estate each own an undivided 50% of the home.  In all likelihood a probate case would need to be opened to handle your brother?s interest in the home.  It would go to his heirs, and would factor into the payment of bills and other expenses.  If, on the other hand, your mother and brother owned the home in joint tenancy with right of survivorship, then she could file an affidavit and death certificate and become the sole owner.

Brian Haggerty · Answer

The question is whether the deed says "not as tenants in common, but with right of survivorship." If it does, then just recording your brother's death certificate in the county records is sufficient to transfer ownership to the surviving tenant. If it does not, then your brother's interest is part of his estate, and would pass through probate according to his will or, if he did not leave a will, according to the laws of intestacy.

Victor Waid · Answer

You are advised to seek the consultation of a probate lawyer to determine if a probate of the title as it applies to your brother needs to be probated to determine the proper beneficiary to inherit the deceased brother's interest.

Patrick Currin · Answer

You would need to supply the deed. If they did not hold the property as "joint tenants" and your brother did not have a trust set up, then the property could well be tied up in probate.

Georges Shers · Answer

If the condo is in California then ownership would either be "as joint tenants with right of survivorship or "tenants in common". for the former, title passes to the living owners when there is a death among some owners; you have to file a declaration of death with the county recorders office. The change in title does not require probate and there is a stepped up basis in the taxable value. If the latter, then your brother's portion of the title passes per the Will or the laws of succession; the estate has to be probated for title to be changed [there still is a stepped up basis as to his half]. Probate is a legal process in which certain paperwork has to be filed with the Probate Court and a person is appointed to handle the estate [normally would be your mother since n dispute exist]. If the only asset is an interestship of less than $100,000 a simple probate can be used. There are books by Nolo Press that describe in lay terms how the  procedure works. If you understand those procedures you will not need to hire an attorney to represent the estate. Good luck.

Frances An · Answer

Did your brother have a will?  Yes, it will have to go to the Probate Court, and you may need an attorney.  If it was in joint tenancy, it would be very simple.  But it is not.  So half the value of the property will go to your brother's heirs, as determined by probate in the Probate Division of the Superior Court in the county where your brother died.

Mark T. Peters · Answer

Weeeelll, there are a couple of issues. First ,did it say Mom and Bro, joint tenants? Or did it say Mom and Bro, tenants in common. If the former, then when he died, his interest disappeared and your mom now owns everything. If the latter, then his interest has to go through probate. However, it is possible that it would be informal probate or small estate probate. I think you need to talk with a local attorney to sort out the issues.

James Oberholtzer · Answer

The answer to your question depends on whether your mother and brother had a joint tenancy or a tenants in common ownership.  This depends on the exact words on the Deed.  It is not so much a question of "And" or "Or".    If it is tenants in common then the value of the property makes a difference.  If it is not high, then your brother's interest could go by his Will or intestacy if he does not have a Will by small estate affidavit.    If it is a joint tenancy then his share automatically goes to your mother and she owns it all without a probate.

Jayne Sebby · Answer

If your mother and your brother owned the property as joint tenants, your mother will automatically inherit your brother's interest in the property. If they own it as tenants in common, your brother's share will be part of his estate. Probate is the legal process of naming an executor to collect all a decedent's assets, pay all of the outstanding debts and taxes, and then distribute the remaining assets either according to the will or according to the state's intestacy laws if there is no will.

Norman Green · Answer

I've never heard of a deed saying "or".  The question to ask is HOW is title held.  Possibilities include:  John and Jane as joint tenants; John and Jane as tenants in common; John and Jane (without any other language).  If they were joint tenants, all your mother must do is file an Affidavit of Death of Joint Tenant with certified copy of death certificate and appropriate Change of Ownership Statement.  If they were tenants in common, then probate administration may be necessary.

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How can my mom change title of condominium if it's under her and my brother's name and my brother passed away?

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