Posted on 11/16/2023 5:08:22 AM PST by where's_the_Outrage?
This situation is not uncommon in the South. Usually they all have to sign in order to sell. It can create title nightmares if a signature gets missed.
It’s best to have real estate passed to a sole owner. Divvy up cash equally if you want, but keep land in sole-owned parcels.
I have a childhood friend that’s in a very similar situation. It is causing all kinds of discord.
” I refuse to buy the narrative that this is some great tragedy”
Before I retired (title insurance) I dealt with this situation all the time. You have one or two elderly people with a fractional undivided interest in the property and living on it in a place that is good for them. BUT you have other undivided interest owners who need the money from the sale of the property. Things like buying their own home, kids and college, maybe they are elderly also and need the money for their own assisted living, etc.
Interesting responses. My mother in law is getting up in age and my wife and I have discussed this as I assume her home on a river will be divided between her three kids.
We assume that we’ll ask her brother to buy out the shares of the other two. He doesn’t live nearby but stores a lot of stuff there including a couple collector cars We assume he’ll want to buy it so he doesn’t need to ever make any decisions about the stuff. (Yea, he takes advantage of his mom and she refuses to put her foot down. If it was me, I’d buy him a calendar for Christmas with a big red X on July 1. When he asks I’d say “that’s the date you have to get all your stuff moved out of my house, otherwise it becomes mine to sell or throw out.). He’s a nice guy and we like each other but it’s gotten ridiculous.
The two conditions can be confusing when presented in legal terms by a lawyer as they have been taught and usually do not vary from.
The thing to remember is that Joint Tenancy (with rights of survivorship) is a "last man standing" proposition who is often called the "remainderman". So long as more than one person who is named on the deed is living nothing can be done to the property without full concurrence by all other living parties. No party the agreement can do anything without full agreement by all other parties or some legal action resulting in "partition by sale".
In Tenants in Common transfer of the property upon death of co-owners must be conveyed by probate and does not happen automatically as in Joint Tenancy. The other problem is that each living party in the arrangement can sell their interest but can't convey title without agreement by all other parties to the deed, some of them may be complete strangers. The property is owned by the holders of the TIC deed as an "undivided interest" meaning you own a part of the whole that can't be parceled out but your part may be conveyed by sale or inheritance. IF it were divided who is to say what part any individual owns? They can't. No "partition by sale" is mentioned for TIC but based on this article it appears it can happen when a party such as a developer gathers up shares and eventually controls the property. Sort of like a hostile takeover.
There are cases for both types of ownership but in general Joint Tenancy is the vehicle of choice for ownership.
Something that seems so simple can become so complicated by the time the legal eagles get through with it.
We just bought a property with a cloud on the title owing to TIC being misconstrued as JT upon the death of the wife and no probate was done. The property was in limbo and not dealt with until the death of the surviving husband. Not sure how they got by with that but they did. Upon the father's death the son conveyed the property to the surviving siblings as TIC as if the father had held the property with his wife as if they were JT, they were not. The son later got the siblings to do a quit claim and put the property ownership in a JT condition between he and his siblings. He ended up being the last man standing and thus carving out any of his nieces and nephews from their inheritance. In the title opinion my attorney caught the invalid transfer of the property on the death of the wife/mother of the fellow, the last man standing, I bought the property from. He did not have a valid title to the property he had agreed to sell. Going back to the death of the wife/mother her estate had to be probated to clear the title. It was. However, in that time someone could have made claims on the property further making a mess of the whole transaction.
Always buy title insurance. It may not cover everything but at least you have an interested and experienced party involved in seeing that the title is clear. Nothing is iron clad though.
My wife and one of her sisters bought out their other siblings, turned the house into a rental. I’m not doing the tax returns for that, too close for comfort, they’ve never listened to my advice, both are too hard headed.
It’s unbelievable how ugly things can get with a “family” when money is involved. I know.
“Assuming” will getcha, my dude. Get it in writing, now, while Mom is competent. Don’t assume anything about the will, see it and know it now. After Mom passes, she might be leaving a sh#t storm for the kids.
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