QUESTION
Is the condominium that she left right of survivorship to brother included as part of his 1/3 share?
Asked on May 28th, 2014 on Estate Planning - Illinois
More details to this question:
I understand what right of survivorship means but in my mom’s will, she left her three children equal 1/3 of her estate.
18 ANSWERS
The deed to the condo would prevail over the will. So her brother would get the condo, the children would be entitled to 1/3 of the remainder of the estate.
Answered on Jun 03rd, 2014 at 7:22 AM
We would need to review the will to be sure, but probably the condo passed to your brother at your mother's death, meaning that it is not part of the estate.
Answered on Jun 02nd, 2014 at 11:05 PM
Divorce Attorney serving New Orleans, LA
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Zitzmann Law, LLC
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Louisiana does not have right of survivorship for co-owned things, so the estate will devolve as specified in the will; 1/3 to each child.
Answered on Jun 02nd, 2014 at 6:10 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Property that is owned jointly with rights of survivorship does not pass under a Will and is not included as part of the estate. The last person standing with survivorship property is the owner.
Answered on Jun 02nd, 2014 at 4:47 PM
3 Awards
No. Assets that are held in joint tenancy are not included in calculation of the amount of the probate estate or what they are entitled to receive.
Answered on Jun 02nd, 2014 at 4:41 PM
Edwin K. Niles
If the condo is in joint tenancy, it goes to the surviving joint tenant, outside the will.
Answered on Jun 02nd, 2014 at 4:40 PM
The answer will depend on the language in your mother's will. Assuming that your brother was specifically bequeathed the right of survivorship and that the last bequest in the will is that the remainder of Mom's estate is to be divided equally equally between her three children, your brother would inherit both the life estate in the property and 1/3 of whatever is left of the estate after all bills and taxes are paid and all specifically-named bequests are distributed.
Answered on Jun 02nd, 2014 at 4:39 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Property passing by right of survivorship is not affected by the will. So, no; brother gets the condo, and then he gets 1/3 of mother's probate estate. Unless one of you can prove (not "mom said," but actual documentary proof) that she intended the condo to be part of his 1/3 share. It would be a very difficult case to make.
Answered on Jun 02nd, 2014 at 11:40 AM
2 Awards
The condo is not part of her estate if in joint tenancy. The brother takes 100% of the condo.
Answered on Jun 02nd, 2014 at 11:26 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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The condo is over and above the 1/3 share, and therefore not included in the 1/3 share.
Answered on Jun 02nd, 2014 at 11:22 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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If she and your brother held the condo as joint tenants with right of survivorship, then it b elongs to himj and is not part of the estate. He rest of the estate gets divided in 3.
Answered on Jun 02nd, 2014 at 11:12 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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At law, the interest in the condominium past outside of your mother's estate and therefore would not be accounted for or have to be equalized. Brother therefore gets the condominium and one third of what over probate estate was left by her mother.
Answered on Jun 02nd, 2014 at 11:12 AM
Probably not, unless there is expressed language in the will to include the condo.
Answered on Jun 02nd, 2014 at 11:12 AM
Cannot answer the question with any specificity because we would need to review the Will, but, generally, the condominium would not be part of the brother's 1/3 share. It would be inaddition to the 1/3 share.
Answered on Jun 02nd, 2014 at 11:11 AM
Thomas Edward Gates
There are two elements that are in play. First, the condominium. It would appear that your mother previously transferred an interest to your brother. Second, if this is the case, the 1/3 is not considered as 1/3 of her estate.
Answered on Jun 02nd, 2014 at 11:10 AM
Taxation Attorney serving Charleston, WV
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C. Page Hamrick III
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FOR WEST VIRGINIA ONLY: I assume you mean that the title to the condominium was in the name of your late mother and one of the children as joint tenants with right of survivorship, and that your mother also left a will giving all three children 1/3 each of her probate estate. If that is the case, then the condo was not probate property in the estate and went "outside" the will directly to the child who had right of survivorship. The rest of the net estate would be divided three ways.
Answered on Jun 02nd, 2014 at 11:10 AM
A joint tenancy creates an automatic 100% fee simple in the surviving joint tenant on the death of the other. If the will doesn't specifically mention the condo as part of the estate, it would be difficult to assert such a right. If there is a conflict between the express terms of the will and the fact a joint tenancy was created, then you have a case, although not a slam dunk. The court will try and figure out the intent of the grantor. When the joint tenancy was created in relation to the will would be a key factor.
Answered on Jun 02nd, 2014 at 11:10 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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The Will controls the distribution of the assets in the estate of the deceased. Real property owned in joint tenancy with rights of survivorship pass to the surviving joint tenant outside of the estate. The only way the real property would be included in the 1/3 distribution from the estate is if there was a reference in the Will that prior gifts be considered an advancement against a distributive share. This reference should be specific.
Answered on Jun 02nd, 2014 at 10:35 AM