The Facts: My father had a daughter, Jane, from a prior marriage. He and Jane did not stay in touch. Since he wanted me to have his house after his death and wanted to avoid probate, my father put my name on the deed to his house after my mother’s death. The deed does not identify my father and me as joint tenants. Recently, my father died without a Will. When Jane learned of our father’s death, she claimed that she had an ownership interest in the house.
The Questions: Is that true? How can I get the house for myself?
The Answer: Assuming you and Jane are your father’s only children, Jane is, in fact, entitled to ½ of your father’s interest in the house. Since the deed does not state that you and your father are joint tenants with a right of survivorship, at the time of his death, you and your father were tenants in common and you each owned ½ of the house. When your father died, his interest in the house automatically passed in equal shares to you and Jane. Like it or not, you and Jane are now tenants in common. Jane owes ¼ of the house. You own ¾ of the house (your original ½ interest, plus your share of your father’s interest in the house).
As tenants in common, you and Jane each have the ability to sell, transfer or bequeath your share of the house to whomever you please. If Jane wants to sell the house, she can force a sale or force you to buy her out. This unfortunate situation could have been avoided quite simply. If the words “joint tenants with right of survivorship” appeared in the deed, your father’s attempt to avoid probate and to pass the house to you alone would have succeeded.
This article first appeared in the March 18, 2010 issue of the Times Beacon Newspapers
Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket,New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.