How a property is titled governs who inherits it if there is no will


June 11, 2000

Dear Mr. Azrael:

In June 1991, my father (widowed and 85 years old), my brother (single, without children) and I (single, without children) bought and paid for a $100,000 house but did not buy the ground.

In February 1992, my brother died of a massive heart attack without a will. His estate was settled through probate, but nothing was done with the deed to the house. I also have another brother who owns his own home.

My father does not feel that he needs a will. If he were to pass, would my surviving brother be entitled to any of the value of this house? Could I be forced to sell the house and split the profit with him? What other alternatives do we have?

Theresa Campbell, Baltimore

Dear Ms. Campbell:

I've written lately about the difference between owning property as tenants in common, compared with ownership as joint tenants. In the situation you pose, the type of tenancy makes all the difference.

The home was purchased by a father and two children. If their deed to the property states that they hold the property as "joint tenants, and not as tenants in common," then when the brother died in 1992, his share of the property passed automatically to the surviving father and sister. Similarly, when the elderly father dies, his interest in the home will pass by operation of law to the daughter, as the sole surviving joint tenant. The daughter then would own the entire interest in the property, subject only to the existing ground rent.

But, if the property deed states that the property is owned by the father and two children as tenants in common, it's a whole new ballgame.

When the brother died, his share would become part of his estate, and would pass to his heirs, since he died without a will. Likewise, the father's interest in the property would pass to his heirs upon his death, unless he has a will specifying to whom his property is left. As an heir, the surviving son (Ms. Campbell's brother) may inherit a portion of his father's interest, as tenant in common.

So, to definitively answer Ms. Campbell's question, an attorney would have to read the deed to see how the property is titled. If the title is not as the current owners wish, they can change the titling by signing and recording a new deed in the proper form.

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