Q: I live in California and have a question about property rights. Let’s say a property is in the name of two brothers and their wives. One brother dies and his wife moves away and has not been heard from since the move.
What would it take to get the spouse of the deceased brother off the property’s title? They never paid any of the property taxes or any of the upkeep on the property. The wife actually abandoned it right after her husband passed away. Is there a way to having her name taken off title?
A: According to an attorney I spoke to, in general, once a person dies title to his property passes in accordance with the terms of his or her will or as dictated by each state’s laws.
When the brother died, if he held the property as joint tenants with rights of survivorship with his wife, his share of the home passed to his wife automatically.
If he died without a will and he owned the home as tenants in common with his wife, his share would be distributed in the manner provided by the State of California. In some states his share of the property would be split in half, with one-half going to his wife and the balance going to his children or other close relatives.
When you own property as joint tenants with rights of survivorship, when either owner dies, the property’s title automatically transfers to the other owner. When title is owned as tenants in common, title transfers like all other property owned by a person, as set forth in a will or as set forth under state laws.
The deceased brother’s wife who has now disappeared certainly has a part ownership in the home. The real question is whether any other family members own a portion of the home.
If the deceased brother’s wife is the only owner, each state has provisions that take care of “abandoned” property. While the general rule might be to have to wait up to 21 years to claim the property as your own, some states have shorter time periods to allow people the right to clean up title to a home.
Some states may require you to file suit to clear title to the home after 5 to 7 years. In your case, you need to talk to an attorney to assist you in your claim to the property and to clean up the title to the home.
By the way, just because a person’s name is on the title to the home, doesn’t necessarily mean that that person still owns the home.
For example, if a husband and wife own their home jointly, and the husband dies, the public record will show that the home is still owned by the husband and the wife as joint tenants. But at the same time the public records will also show that the husband has died.
When the wife goes to sell the property, the closing agent or title company will require her to evidence that her husband has passed away, such as a copy of the death certificate, and perhaps some other additional documentation
Since the wife was on title, and if she and her husband owned it as joint tenants with rights of survivorship, she is in effect the sole owner of the property with the right to convey the title to a subsequent owner.
Either you need to find your brother’s wife – or I’m assuming it’s your brother who has passed away – or you will have to follow the procedures in your state relating to her abandoned interest in the property and clear up the title before the property is sold.