Full question:
My mother purchased a house with cash in 2000 in Mcdonough Georgia, Henry County. In 2003 she created a Joint Tenancy with Rights of Survivor placing her name, my brother-in-laws name and my name on the deed. In 2004 my brother-in-law remarried so my mother had his name removed from the Joint Tenancy with Rights of Survivorship with a QuitClaim that he signed. This left the deed in My mother's name and my name. She passed away in September 2010. I am trying to sell the house but have been told that the Quitclaim severed the rights of Survivorship and the proceeds from the sale of the house has to go into my mother's estate. Can you speak to this. (Note: I live in Westminster, Maryland but the house in question is in McDonough, GA Henry County.
- Category: Real Property
- Subcategory: Joint Tenants
- Date:
- State: Maryland
Answer:
Merely removing someone from a deed won't convert the tenancy of the remaining two tenants to a tenancy in common. A transfer to another party is the typical way a joint tenancy is severed. The answer will depend on the wording of the deeds. We suggest you consult a local attorney who can review all the facts and documents involved.
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
The severing deed or declaration must be in writing, must be properly executed by the severing joint tenant, and must express an intent to sever by any of the following means: (1) it transfers the severing joint tenant's interest to a third person (except
spouse), (2) it transfers the severing joint tenant's interest to a trust for the benefit of a third person (contrary to joint tenants' survivorship rights) or to a legal entity (such as a partnership),
(3) it constitutes an agreement to sever, or (4) it transfers the severing joint tenant's interest to a remaining joint tenant.
The effect of a valid severance is that the survivorship rights are extinguished as between the severing joint tenant and the other joint tenants, resulting in a tenancy in common to that extent; the transfer does not affect the continuation of the joint tenancy between the interests of any two or more remaining joint tenants.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
