Q&A with Loraine: Family Home

Question: Who does my father’s home, which he previously shared with my grandmother, legally belong to?

Background:  My father recently died, and my grandmother pre-deceased him. How do we find out who legally has ownership of the home they shared?

Answer from Loraine:

Please accept my condolences on the loss of your father. The question you asked about ownership of his home really isn’t a probate issue – it’s a real estate title question. However, probate proceedings may be needed to determine the answer.

Although you didn’t say how the deed to the house is written, it is important to know that. You also need to know if your grandmother or father had their own wills. All of this information is key to the determining ownership. You need to hire an attorney who practices in the state where the property is located and review all of these relevant facts to know what to do next.

Let me explain why these facts are so critical. If the deed was written so that your grandmother and father owned the property as joint tenants with rights of survivorship, then your father would have become the sole owner when your grandmother died, whether or not she had a will, and no matter how many other heirs she may have had. However, knowing that they owned the property jointly does not tell you whether they owned it as joint tenants with rights of survivorship: In Georgia, a deed must contain very specific wording in order for jointly owned property to be held as joint tenants with rights of survivorship, and the default form of joint ownership, which is tenants in common, does NOT include the right of survivorship. To create a right of survivorship, a deed must include both owners’ names, AND must also include the words “as joint tenants with rights of survivorship,” “as joint tenants,” “with rights of survivorship,” or something else that clearly indicates that one owner is intended to automatically receive the other’s owner in the property at the first owner’s death. If your father and grandmother were the only owners of the house, and if the deed contained the magic words, then your father would automatically have become the sole owner of the property when your grandmother passed.

However, if your grandmother and father owned the house as tenants in common, meaning that the deed did not contain the right language to create a right of survivorship and just named them as owners (and if they were the only two owners), then your grandmother’s estate received her half the property at her death, and your father continued to own his half.  Your grandmother’s half of the property should then pass in accordance with her Will, if she had one. Or, if she died without a Will, then her interest in the property would have passed to her heirs. Assuming your grandmother in this case was also your father’s mother, then he would have been one of her heirs. However, he may not have been the only one. If your grandmother was married at her death, her surviving spouse would be an heir. Her other surviving children would also have been heirs. And, if she had any children who died before she did but who had their own children, then her grandchildren by the deceased children (and possibly even great-grandchildren, if any grandchild from a deceased child also died before your grandmother did) would also be heirs.

Whatever happened to your grandmother’s interest, at your father’s death, his interest in the house, which would include his original half interest in the house plus any interest he received from your grandmother, would have become part of his estate. If he had a Will, the Will needs to be admitted to probate and the nominated Executor should follow it in distributing your father’s interest in the property. If he did not have a Will, then his interest passed to his heirs, subject to the appointment of an administrator for his estate.

Please note that certain factors do NOT have any bearing on who currently owns the property and how it passed: One such factor is who put the down payment on the property. Another such factor is who paid for maintenance and expenses such as property taxes since your grandmother’s passing. Title to real estate is not affected by those issues, and paying for property that you don’t hold title to does not give you any interest in the property. Only certain acts or events can transfer title to property.

It may be necessary to open and administer both your grandmother’s estate and your father’s estate, if they owned the house as tenants in common. If they owned the property as joint tenants with rights of survivorship, however, then you may only need to deal with your father’s estate. Please also note: just because a person owned an interest in property does not necessarily mean that the property will eventually pass to that person’s heirs or Will beneficiaries. Debts and expenses owed at that person’s death will need to be paid from his or her estate. If an interest in property passed to that person’s estate and if other estate assets are insufficient to allow the person’s debts and expenses to be paid, the property may need to be sold to pay the debts and expenses, either to the would-be heirs or beneficiaries or to a third party.

I understand that all of this can be confusing. Your first step should be to take a copy of the most recently filed deed for the property to an attorney who is familiar with real estate and probate matters and practices in the state where the property is located. The attorney should be able to tell you how your grandmother and your father owned the property at your grandmother’s death and whether your grandmother’s estate or heirs may still have interests in it. The attorney should then be able to give you an idea as to the next steps that need to be taken in order to make sure that the property title is cleared up and any estates that need to be handled are handled.

Key Estate Planning Takeaway: Whenever a family member passes, one of the first questions that can come up relates to ownership of the decedent’s home. Emotions can run high, especially if the property in question has played a major role in the family dynamic. In Georgia, title to real estate and how that title passes at a property owner’s death is controlled first by how the deed is written. If the property owner’s interest is not owned jointly with another person subject to a right of survivorship, then that interest will generally become part of the owner’s estate at his or her death. How the estate passes then depends on whether the deceased owner had a valid Will and, if not, who his or her heirs are. It can be complicated and difficult for laypersons to figure out. Consulting an attorney who practices in the state where the property is located can be critical to properly determining how a property is owned after a death, as well as what steps, if any, need to be taken in order to clean up the title.

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.

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