Q: My parents (now in their 80s) own a small apartment building with my brother and his wife. Title is held as joint tenants with right of survivorship. When the property was initially purchased, they agreed that this would be a 50/50 partnership. Both couples also agreed that if they died, their respective 50 percent share would go to their respective estate and not to the remaining partners. I have two questions:

Shouldn’t they have the title redrawn as tenants in common so as to accomplish what they initially intended?

If my brother and his wife refuse to go along with changing the title to the property to tenants in common, can my parents proceed to change it without their partners’ consent? My brother has made it very clear that they want their 50 percent share to go to their kids in the case of their death, but they may be banking on acquiring 100 percent of property upon my parents’ death (because of their advanced age) if title stays the way it is.

A: What ever happened to "brotherly love"? Have you discussed the matter with your parents and with your brother and his wife? Perhaps your parents have changed their mind and want the entire property to go to your brother on their death.

First, let’s analyze the impact of the title situation. The four owners hold title as joint tenants with rights of survivorship. That means that on the death of any one owner, his or her share will automatically — by operation of law — vest in the remaining three. And as other owners die, title will continue to pass to those who are still alive.

Probate will not be required. Furthermore, even if your parents each have a last will and testament giving you their interest in the property on their death, that will is ineffective. The deed will control how their interests will be distributed. While you can try to make a strong argument that this was not their intention, the law will not support your position.

To accomplish what you claim was the original intention, title should have been held as follows: "Husband and Wife, as tenants by the entirety as to a one-half interest, and as tenants in common with Son and Daughter-in-law as tenants by the entirety as to the remaining one-half interest." (Note: If you live in a community property law state, consult your own attorney for specific advice.)

What does this accomplish? If the husband dies first, his wife would own one-half of the property. This is because husband and wife originally owned their half as "tenants by the entirety" (T/E), which has the same effect as holding title as "joint tenants with right of survivorship." The major difference is that T/E is reserved exclusively for husbands and wives. Unlike a joint tenancy, which can be unilaterally broken, the T/E can be divided only by agreement between the parties, death or divorce.

Then when your mother dies, because she now owns the property as "tenants in common" with your brother and his wife, her half would have to be probated. Assuming that there are no major financial obligations to creditors — such as credit-card debt, other mortgage obligations, or judgments against your mother — half of the house would be given as instructed by her will.

So the answer to your first question is yes; if your parents want their half to be distributed by their will — and not by operation of law to your brother and sister-in-law — they should arrange to have the title changed as described above.

If there is no will, the probate judge will look to the laws in the state where your parents died (called "intestacy laws"), which spell out how the property is to be distributed.

But, while I certainly appreciate your concern, this is not your decision to make. You can give advice to your parents, but you cannot force them to make the change. For all you know, they have decided that your brother needs the money from the house more than you and want to make sure that he will own the property on their death. Also, your parents may have provided other benefits for you in their will.

As for your second question, yes, a joint tenant can unilaterally change the title into a tenant-in-common arrangement. But once again, that’s a decision only your parents can make.

It’s probably too late for your parents, but there is a strong lesson to be learned. Whenever you enter into any real estate "partnership" with anyone — even it be a friend or a relative — make sure that you have a written agreement spelling out all of the terms and conditions regarding ownership and maintenance of the property. Specifically:

  • Who will make the monthly payments for the mortgage, taxes and insurance?

  • What happens if one party is unable (or unwilling) to contribute financially?

  • If one party wants out of the transaction, how is this to be handled? Will the other party have a "right of first refusal" or will the property be listed for sale?

  • If one party dies, what will happen to the property?

These are a few of the basic questions that must be incorporated into a written agreement, to be signed before settlement takes place.

It is always better to discuss these matters while you are friendly and talking to each other rather than try to resolve issues at a later date when anger and frustration — and often lawyers — are present.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.


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