When it comes to joint ownership and estate planning, it’s important to understand whether you own the property as tenants in common or tenants with rights of survivorship.
Q: I have a question. My brother and I got an apartment together nine years ago. We are joint owners. He was never married but has four kids. I have legal custody of one of his kids. He passed away recently. I plan to sell the apartment. I want to know if legally I can do whatever I want with the property or do I have to give half to his girlfriend? I want to know what I must do legally.
A: First, our condolences to you and your family on your loss. On the legal front, we can only give you general information. For specific legal advice, you’ll need to talk to a local attorney near where you live. Having said that, if you and your brother owned the condominium together as joint tenants with rights of survivorship, you became the sole owner of the condominium at the time of his death.
The question for you is whether you owned the property as tenants in common or as joint tenants with rights of survivorship. As we indicated, if you owned it as joint tenants, you are owner of 100 percent of the condominium and what you do with the condominium would be up to you and only you.
On the other hand, if the ownership was as tenants in common, you and your brother would have each owned 50 percent of the condominium. In that case, his kids likely would inherit his share of the condominium and if his kids own his share, you won’t be able to sell the condominium without their signature. If you have custody over any minor kids, you might have the right to sign on behalf of the minor child but not for the other kids who you don’t have custody for and for those that are of the age of majority (generally 18).
You asked about his girlfriend. In most situations boyfriend and girlfriends don’t get any rights to property or money of the person they were dating unless the friend that died had a provision in his or her will giving the friend some rights. In certain community property states, a boyfriend or girlfriend can get rights if they have lived together for a certain amount of time. So, if they lived together for a year or two, she probably has no right to the property but in a community property state if they lived together for, say, 10 years, she would have rights to much of his property or a share of his property.
As you plan what to do next with this property, you should probably talk to an attorney in your area with experience in family law issues or estate planning. You might get this information from a real estate attorney as well. Once you give the attorney your specifics, have information about whether he had or didn’t have a will, and other relevant details about the ages of his kids and how long he dated his girlfriend, you’ll get a better answer.