Justin, my brother and I were co-owners of some land. He passed away, and I’m trying to sell the property, but the title company said I have to probate his part. After my dad died, my mom was able to sell their house without any problem. I don’t understand why I’m having trouble? – Claire
Claire, many of my clients have been in your exact situation and experienced similar frustration. The wording of the deed itself can make a huge difference. Often people think that if they are co-owners on property, the surviving owner will be the sole owner, similar to a bank account. Real property, however, is different.
When property is owned by two people who are not married, unless you specify otherwise, the property is owned as tenants in common. With this type of ownership, if an owner passes away, his interest is owned by his estate, which would have to be probated. It is possible to create the deed where the owners are designated as joint tenants with right of survivorship, but this language must appear in the deed itself to create this type of interest. Then, when one of the owners dies the other owner automatically become the sole owner.
When a married couple owns property, the rules are different. The default law is that the property is owned as tenants by the entirety. When property is owned this way, at the death of the first spouse, the survivor automatically becomes the sole owner. How a deed is worded is very important, and if you want to avoid probate, you need to meet with an estate planning attorney to ensure things are done right.