Q&A with Loraine: Deeds Versus Wills

Question: Who does the home legally belong to?

Background: The home (in question) was bought in the 70s, with the down payment paid by my father. My father is listed on the deed as the owner and my grandmother is listed as the co-owner. My grandmother died in early 2000s. My father moved into the home and continued to pay all the bills until he recently passed away.

The deed still lists my father and his mom as owner and co-owner. My father had many siblings, all of whom have kids. Some of his siblings have passed away. The property was never argued in probate court.

Answer from Loraine: Please accept my condolences on the loss of your father.

You asked who owns the property, which means this really isn’t exactly a probate question – it’s really more of a real estate title question. However, probate proceedings may be needed.

You don’t state exactly how the deed is written, you don’t state where the property is located (I assume it is in Georgia, but you didn’t say that. If it isn’t, this answer may not be correct.) and you don’t state whether either your grandmother or your father had a Will. Those are all key facts.

Rather than trying to get an actual answer in this kind of forum, you really need to hire an attorney in the state where the property is located to sit down with you and review ALL of the relevant facts so that you will know both how the property is currently owned and what steps need to be taken to get the title cleaned up.

Here’s why those facts (exactly how the deed was written, where the property is located, and whether either your father or grandmother had a Will) are all critical:

  1. If the deed was written so that your father and grandmother owned the property as joint tenants with rights of survivorship (which would have required the deed to contain very specific language stating that joint tenancy with a right of survivorship was intended, although there are a number of different ways this can be stated), then your father would have become the sole owner at your grandmother’s death no matter whether she had a Will or how many other heirs she might have had, because he would have been the surviving joint tenant (based on the facts you do state in your post, under which he and she were the only owners).

At his death, if he had a Will, his estate would have become the owner of the property, subject to distribution in accordance with his Will or, if he had no Will, his heirs would have become the owners, subject to the appointment of an administrator for his estate, which would pull ownership of the property back to his estate (where it would be subject to claims for expenses and debts and then distributed back to the heirs after those items are taken care of ). BUT…

  1. If the deed was written so that your father and grandmother owned the property as tenants in common (both names on the deed but without language that created the joint tenancy with a right of survivorship), then your grandmother owned 1/2 the property, and it should have passed under her Will, if she had one, or to her heirs, if she did not have a Will. If she had a lot of children, and if she was married at her death, then she likely had a lot of heirs. Your father’s death would then have affected only the interest in the property that he actually owned, which was likely the 1/2 that he originally owned, plus any interest he might have received from your grandmother if he was one of her heirs and she had no Will, or plus whatever interest she may have left him under a Will.

Without knowing whether your grandmother had a Will, it’s not possible to tell who became owners of her interest in the property at her death. And without knowing whether your father had a Will and who his heirs would be if he didn’t, then it’s not possible to tell who might own his interest in the property.

Please note: Who put the down payment on the property is not important; nor is who paid for expenses relating to the property after your grandmother died. Neither of those things affects legal ownership.

It may be necessary to open both your grandmother’s estate and your father’s estate for probate, if neither of them had a Will and if they owned the property as tenants in common. If they owned it as joint tenants, then it may be necessary to open your father’s estate for administration. But I suggest your first step should be to take a copy of the deed to an attorney and have the attorney review it. Find an attorney in the state where the property is located and who knows real estate or probate. Best wishes to you!

Key Estate Planning Takeaway: Matters regarding real estate at a family member’s passing can be complicated. Two legal documents may come into play – a deed and a Will. A deed transfers property ownership from a seller/grantor to a buyer/grantee. A Will, generally speaking, is a document that coordinates the distribution of your assets after death.

When questions arise about property ownership, it is best to consult with an attorney in the state where the property is located about how the deed is written and if the deceased property owner had a Will.

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.

Follow us on

Print Friendly, PDF & Email

Request a Consultation

Scroll to Top

This website uses cookies to ensure you get the best experience on our website.