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.
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.
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. In this case, they might choose to own the property as tenants in common.
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. If Sally were to die, 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 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.
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.
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.
Ilyce Glink is an award-winning, nationally-syndicated columnist, television reporter, radio talk show host and bestselling book author. Her syndicated column, Real Estate Matters, appears in more than 100 newspapers and Web sites across the U.S.