Dividing joint property when a co-owner dies without a will depends on whether title was held in joint-tenancy or tenants in common.
Q: I own a home jointly but the other owner passed away without a will. His family has filed a suit to partition and insists that if I don’t buy them out they will have the home auctioned. The home is fully paid for. Only the deceased party and myself have names on the deed. Please tell me if they can proceed with this and what my legal rights are.
Dividing Joint Property When Co-owner Died Without a Will
A: If the deceased co-owner’s family has really filed a suit to partition, you need to hire a lawyer who can represent you legally. While we can give you some information here, so you understand a bit more about what is happening to you, once people have gone down the path of litigation, you’d be smart to hire a litigator with knowledge of real estate law.
In most states, there are several ways for you to hold title: in your own name; in common with other people; jointly with other people; and as tenants by the entirety with your spouse or partner in a civil union. In addition, you can own real estate through trusts, partnerships, corporations and limited liability companies.
But the vast majority of people out there will own homes in their own names either in common with another person or jointly with that other person.
There is a keen distinction between owning a home with someone in common versus owning it jointly. In most states, when two homeowners buy property, they take title as joint owners with rights of survivorship. In this case, if one owner dies, the other owner automatically becomes the sole owner of the property.
An Example
Some states require owners to use the exact wording to create the joint tenancy and the language on the deed might convey title to John White and Sally Brown as joint tenants with rights of survivorship and not as tenants in common.
The reason for this exact language in some states is to avoid any ambiguity that John White and Sally Brown have chosen to own the title together and know that if one of them dies, the other owner will get title to the property automatically.
In other situations, John White and Sally Brown might want to keep their ownership separate and may want family members or other people to inherit their share of the property. They might choose to own the property as tenants in common in this case.
In some cases, that ownership in common can be in equal shares or one owner may own a greater share. For example, you could have John White own a 25 percent interest in the property and Sally Brown own a 75 percent interest. When Sally died her family would inherit her share of the home. If she died with a will, her family would take her share as designated by the will. If she died without a will, her share of the home might pass according to the laws of the state in which the property was located.
Haven given you all this information about tenants in common (as it is commonly referred to), you need to know whether your property was held as tenants in common, or perhaps as joint tenants with rights of survivorship.
Rights of Survivorship
If the property was held as joint tenants with rights of survivorship, you should have become the automatic owner of the whole property at the time of your co-owner’s death. If this is your situation, your attorney should be able to dismiss their complaint and you should have the right to your ownership of the property as a whole going forward.
However, if your “joint” ownership did not give you rights of survivorship, you might have been a co-owner of the home and now that your co-owner died, you might own part of the home and your co-owner’s family owns his or her interest. If they inherited his interest, they have the right to own the home and might be able to force you to either pay them for their share of the home or have a court force the sale of the home.
Now that you have some background, let’s get to the partition suit you might be facing. When co-owners of a property don’t get along, one of the owners can file a partition suit to force the other owner to either sell the property or create a situation in which one co-owner might have the right to buy the other one out.
How to Proceed
With this information, you should have a better idea as to where you stand with your co-owner’s relatives and make a determination as to how you want to proceed. In any case, you need the counsel of an attorney to work with you to get the suit dismissed, if they don’t have a case, or to settle the suit by buying them off.
If you have to buy the relatives off, you will need to determine a value for the home, the share that the relatives own in the home and any costs and expenses in the ownership of the home that need to be deducted from the proceeds along with other sale’s costs, to come up with a number to give them. Your attorney should be able to help you work through these numbers.
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If a lady owner dies without any will n her husband n three sons are alive, how will the property be divided es among them?? What if her sons n her husband have been living in their seperability rooms n one room is under dispute.. The room under dispute was built by her elder son n husband who r jointly working on a shop through which investment was done.. However, her middle child kept his stuff in that room. The room is filled by elder son’s n middle son’s stuffs. To whom will d room b alloted?? Also, her husband claims that he has transferred the ownership of the house to himself in nagarpalika, is it possible without any mutual consent of his children???? Her husband who works jointly with his elder son, now has decided to give the room under dispute to the middle child.. Is it possible????
That’s a tough situation. I’m sorry first.
There’s not enough information for a clear answer…but most likely the husband and wife bought the house together jointly and the husband now owns the house. The added room really would have no separate value to anyone unless contractually created.
Consult an attorney but I see no way around that unless there was complete joint ownership with the sons also being on the deed.
My aunt and her boyfriend own a home together. The deed says both names with and in between them. She left no will but I’m beneficiary of life insurance. My question is does he get the house now that she had passed or do I need a lawyer to probate her half?
AM in a similar situation and i was paying the Bond for 13 years alone, the other partner was only there to help me Qualify only as i couldn’t qualify alone because of my salary was still too low. now the Daughter of the desessed has organised an Attorney to claim her share, the House was paid out by the Insurance after the diseased passed away.i was the only one who was paying for the past 13 years. the House is also not on the Will.
Joint owner on title of home my mom passed but I still Love I. Home and pay mortgage because I’m on mortgage as well but yet they still keep telling me my
Moms name cannot be removed from title of home
In 2006 we bought a moble home together. He owned the land our home is on. He passed in febuary. Our daughters are his next of kin, they have filed for the deed to be put in their name. I hold the slip of sales on the mobile home. How does New York State laws let them evict me in a 10 day quit? This notice has never went in front of a judge to be approved.
My deceased husband inherited property in New Hampshire, co-owner with brother, who does not want to sell. My husband does not have a will. How will the property be handled? Would it go to probate?
My dad and his girlfriend at the time bought a condo together before getting married. They did not follow through with getting the title changed afterwards allowing her to have rights of survivorship. He died two years ago and didn’t leave a will. She is now in the process of selling the condo and is just now finding out that my two brothers and i, as his heirs, own a part of it. She is wanting us to sign a quit deed so she can get it sold by May 10, 2019 when she is also closing on a new home. Well this quit deed means we get nothing on this sale. What are our options regarding this if there is no will and no other assets in his name that we know of? Also if we pursued his portion of the sale and there is no set % of ownership, would the proceeds be splits evenly or would we three get 1/3 of 1/2 of the sale?
Heather,
You’re right. If you do a quit claim deed, you will wind up with nothing. Instead, you need to find yourselves a good estate attorney who can help you understand what you were entitled to get out of the estate. If you own a chunk of it, then she will have to pay you out when it sells. There are ways to make sure this happens. But what other assets are there? Was there a car? Was there a bank account? Depending on how you feel about the girlfriend, you may want to fight for those assets, too, if they exist.
Typically, if there is no will, the asset would get divided according to state law. Typically, the spouse would get half and the children would get half. In your case, assume that the property is not held jointly with rights of survivorship – she’d get all of it if that were true. So, you’ve inherited your Dad’s half and now must split it with your siblings. There are three of you, so you would get 1/3 of 1/2, or 1/6 of the pie.
The estate attorney can supply more details, but I’d talk with him/her ASAP
Thanks for your question.
Best,
Ilyce Glink, Publisher
My brother died he owned half the house and another has the other half. What happens to my deceased brothers half
Rita:
If your brother owned half of a house at the time of death, and he didn’t have a will that directed the estate to divide it according to his wishes, then the state law (of the state in which your brother was a resident at the time of death) will prevail. Typically, half of the property would go to his spouse and half go to his children. If there is no spouse, half of his half might go to his parents (if they are living). If there is no spouse, no children, and no parents, his half of the property may then be divided amongst siblings or other living relatives.
Please consult with an estate attorney for more details.
My wife of several years past and we have two children. There was no will and I recently paid of the mortgage completely and had all papers will both our names changed solely in my name alone deed bank records mortgage etc. I want to sell my house but my children tell me that I can’t that they are part owners as well when she past. We reside in ny city is this the case. Can they stop me from selling the house under this situation even know they weren’t mentioned by her
Stephen,
Condolences on the loss of your wife. When there is no will, typically all of the property owned by the decedent (your wife, in this case) would go into the estate and then the estate is divvied up by state law. Typically, and I believe this is true in New York, you would receive half of your late wife’s property and her children would receive the other half, typically divided equally.
However, there are several exceptions to this: First, how was title to your property held? If you and she bought the house as “joint tenants with rights of survivorship,” then the property would have passed immediately to you upon her death and you would own it all. It would not be included in her estate.
What other property/assets might not be included? If your wife had a 401k account or other retirement account that named you as the beneficiary, that would also pass directly to you. If she had a life insurance policy that named a beneficiary, that would also pass directly to the beneficiaries.
If you had everything changed solely to your name, I’d assume that you owned the property as joint tenants with rights of survivorship. If you did not own the property that way, then you likely would have inherited half of your wife’s half-ownership, with her children owning the other half. In this case, you would have been wrong to change the name of the property to yourself and her children (I’m using “her” as it’s unclear to me if these are her children alone or if you share them) and may have opened yourself up to a potential lawsuit.
The best thing you can do now is to speak with a good estate attorney, who can advise you on what you own and what, if anything, the children own. You should also discuss any changes that now need to be made to your own will, your 401k or other retirement accounts, non-qualified retirement accounts, and other assets. And if you don’t have a will, you should immediately write one.
Good luck,
Ilyce Glink, Publisher
ThinkGlink.com
When my father passed he had a home in his irrevocable trust. There were 3 children as beneficiaries. 1 wanted their money now, so the other 2 had the home appraised and bought out the sibling dividing the home value minus the outstanding mortgage equally. That home has been on the market for sale with the remaining 2 siblings having equal ownership (both names on the deed), equally paying off the remaining mortgage and sharing equally the costs for maintenance, taxes, insurance etc. Now unfortunately one of the 2 siblings has recently passed away.He left no legal will. My question is would the remaining sibling receive sole ownership of the home now or is the property destined for probate?
ex and I bought property atogether after our divorce years prior, Deed states JTWROS, we had property damage dupplemental clain finalize, Insurer rep made out drafts incorrectly [4] times from May2019 thru Jan 2020 deleting my name and combining draft names as if we were still married, Our rntire Hurricane Matthew 10/088/206, has been plagued by negligence,we challenged it and the Initial draftInsurance co, adjusters found their own errors ,attemting to pay Insureds ACV$7,000 when in fact actual damages were $133,000ACV; initial drafts not paid out in 60 /90 days, but 150days, with Ins. Reps failing to address the expected Supplements and finaizing claim. actions beleived to be done in retribution to our challenging premature close out, proving their erros.,the guilty reps have done everything possible to convolute our claim and delay it’s finalizing, in 04/23/2019, since May 2019 thru Jan 2020,[4] sets drafts issued our names incorrect, ex died June 2020, as we had not recived corrected drafts, Petitioner for Insurer, is now using ex death to convolute issues,bringing in Heirship of our adult children to these insurance proceedsm specific to our Homeowner policy recovery for repairs. Are these aduly children entitled to any of these insurance repair proceeds as our DEED was JTWROS>