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HotMess_123

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Dad passed several years ago, leaving a home which was paid off, in which his widow lives. Ownership is JTWROS in a fee simple estate involving the widow, and the decedent's biological children.  

 

Since then widow has moved on, and has a new companion living with her.  Neither pay rent; however, the property taxes and insurance are being paid. (and yes, decedent's kids realize we own liability for taxes if they go unpaid.)

 

We are finding the widow to be a bit difficult to discuss business matters (to resolution) and establish boundaries.  We wish to sever the JTWROS, realizing we forfeit a portion to the widow instead of selling and splitting proceeds between the siblings once the widow passes away.  

 

Is that partitioning an even split, or is it based on some other probate decision of division percentage in GA (as in widow gets 50% and children of deceased split the remaining 50% (the will states "share and share alike")?  

 

Is the value the fair market value TODAY, or as of the date of Dad's death?

 

We realize partition is the route to go, or gift to a strawman to force our status to TIC.  

 

My question is this - can we charge rent to the widow if we are all TIC (assuming I am not the only sibling to sever the JTWROS  for TIC)? Is there any mechanism to charge the companion rent?

 

Another question is that if the live-in companion has paid taxes, does the companion have any stake or claim to adverse possession? 

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Remarkable deed.  If a partition suit is filed the property would be sold at auction so the value would be the bid price minus sales costs.  The division would be equal among the remaining tenants.  The widow's boyfriend would have no claim since he is living there with the permission of one of the owners.  His occupancy is not adverse.

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10 hours ago, HotMess_123 said:

Ownership is JTWROS in a fee simple estate involving the widow, and the decedent's biological children.

 

Just to clarify, are you saying that your father's widow (who I assume is not your mother) and you and his other children all own the home as joint tenants?  In other words, there's a deed that grants the property to the widow and you and your siblings as joint tenants.  Correct?

 

 

10 hours ago, HotMess_123 said:

We wish to sever the JTWROS, realizing we forfeit a portion to the widow instead of selling and splitting proceeds between the siblings once the widow passes away.

 

That the property is held in joint tenancy is only meaningful when someone dies.  As long as all the joint owners are alive, a joint tenancy is no different from a tenancy in common.  The difference is that, when a joint tenant dies, his/her interest passes to the remaining joint tenants by operation of law (i.e., "automatically").  On the other hand, when a tenant in common dies, his/her interest passes to his/her estate.  Destroying the joint tenancy would result in the widow's share passing to her estate intead of to you and your siblings.  If that's a concern to you, then destroying the joint tenancy would be of no benefit to you unless one of you dies before she does.

 

 

10 hours ago, HotMess_123 said:

Is that partitioning an even split, or is it based on some other probate decision of division percentage in GA (as in widow gets 50% and children of deceased split the remaining 50% (the will states "share and share alike")?

 

Huh?  For the sake of discussion, I'll assume you have two siblings, so there are four joint owners.  Unless the deed by which you acquired the property says something different, each of you owns an undivided 25% interest.  This isn't a probate matter at all.

 

 

11 hours ago, HotMess_123 said:

Is the value the fair market value TODAY, or as of the date of Dad's death?

 

I have no idea what you're talking about or why you think the fair market value from "several years ago" would be the slightest bit relevant.  If you're talking about a partition action, the fair market value at the time of your father's death would be of no relevance at all.

 

 

11 hours ago, HotMess_123 said:

We realize partition is the route to go, or gift to a strawman to force our status to TIC.

 

You would not need to "gift to a strawman" in order to destroy the joint tenancy, and partition is usually the worst way to deal with a situation like this.

 

 

11 hours ago, HotMess_123 said:

My question is this - can we charge rent to the widow if we are all TIC (assuming I am not the only sibling to sever the JTWROS  for TIC)? Is there any mechanism to charge the companion rent?

 

You cannot charge your stepmother's boyfriend rent because he is, presumably, living there with permission of one of the owners.  However, in any joint ownership situation (whether JTWROS or TIC), if one of the joint owners is exercising exclusive possession of the premises, he/she is accountable to the other joint owners for the property's fair rental value, less costs of maintenance.  In other words, if fair rental value is $1k per month, and property taxes, insurance, and other maintenance costs are $4k per year (I'm assuming there's no mortgage), then your stepmother is accountable to the four joint owners (including herself) for $8k per year (or $2k per year per joint owner).

 

 

11 hours ago, HotMess_123 said:

Another question is that if the live-in companion has paid taxes, does the companion have any stake or claim to adverse possession?

 

Not under the circumstances you've described.  Among other things, he is living there with permission and does not have exclusive possession of the premises.

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3 hours ago, HotMess_123 said:

I have my own theories why he did what he did, but curious as to yours.

 

Why would the speculation of anonymous strangers regarding the motivations of a man we didn't know and never met be of any value?

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Not our mother is correct.  At no point in time have Dad's widow and children lived under the same roof other than a vacation.

 

The issue of tenancy is not one of JTWROS vs.TIC - it's a little deeper than that.  We are trying to understand our LEGAL obligations to the widow to determine strategies to balance her desires and our ability to fulfill those desires. The only legal 'tie that binds' is the co-owned house.  We each have nuclear families of our own, some have unrelated legal obligations, and information gathering has been drinking from a fire hose of multiple-state legal resources in multiple legal disciplines. (Forgive me for the leaks and intellectual misfires - ie.valuation of the house). 

 

Why would the speculation of anonymous strangers regarding the motivations of a man you don't know be of any value?  In pragmatic decision making strategy, it is of absolutely NO value. 

 

I'm just curious what "Remarkable Deed" meant.  Maybe my analysis of the situation is short-sighted.  We are hearing from attorneys "why did he do fee simple instead of a life estate or....? That makes NO sense." 

 

Analytical brain power other than my own is always appreciated.  Am I missing some detail that should be so terribly obvious and I'm not seeing the forest for the trees?

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You didn't answer what is probably the most important question I asked:

 

4 hours ago, pg1067 said:

Just to clarify, are you saying that your father's widow (who I assume is not your mother) and you and his other children all own the home as joint tenants?  In other words, there's a deed that grants the property to the widow and you and your siblings as joint tenants.  Correct?

 

Unless you tell us otherwise, I'm going to assume the answer is yes.

 

 

7 minutes ago, HotMess_123 said:

We are trying to understand our LEGAL obligations to the widow to determine strategies to balance her desires and our ability to fulfill those desires.

 

I cannot conceive of any reason why you would have a "LEGAL obligation[] . . . to the widow to determine strategies to balance her desires" (whatever exactly that means).  In fact, it's not apparent to me that you have any legal obligations whatsoever to your stepmother.

 

 

9 minutes ago, HotMess_123 said:

Am I missing some detail that should be so terribly obvious and I'm not seeing the forest for the trees?

 

I don't know.  As far as I can tell, you and some unstated number of siblings co-own a home with someone to whom you're not related.  That she is (or was) your stepmother and that the home used to be owned by your father are facts of little, if any, legal relevance.  I already explained the law regarding one of many co-owners in exclusive possession.

 

You haven't said so clearly, but I'm guessing you no longer want to co-own the property (and maybe your siblings feel the same).  Beyond that, however, I have no idea what result you'd like to see occur.  You vaguely alluded to a partition action, which suggests to me that all you want is money (i.e., you don't want to end up owning the home).  If that's the case, then, before you sue for partition, you ought to approach your fellow co-owners to see if any of them wants to buy out your interest.  My guess is that maybe your stepmother would like to stay in the home, so maybe the issue is whether or not she can afford to buy out you (and your siblings) or whether she can qualify for a loan against the property.  There are many possible options here, so I suggest you consult with a local real estate attorney.

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I said "Remarkable deed" because it is strange to have what is apparently four or five tenants owning a property with all four or five having a right of survivorship.  What possible goal would lead to such a strange arrangement?  Whoever lives the longest gets to own the property - right?  Did this have something to do with financing the property?  It apparently had little to do with keeping the property in the family since the goal, of some of the tenants,  now is apparently to sell it.

 

So my question is "Why in the world was the property deeded to four or five people with right of survivorship?"

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So my question is "Why in the world was the property deeded to four or five people with right of survivorship?"   Speculation: this decision was in deference to his wife, to give HER the ability to drive how long she wished to live in the home.  A Life Estate/Estate in Remainder is until death.  An Estate for Years has an expiration date.  My assessment is that he didn't want to lock in on either of these, but give the widow the ability to make that choice for herself.

 

It's a completely logical decision for a man who is trying to honor his wife, but leave his assets to his children - and was placing his bet that his children will survive his widow. Did he make the right choice?  Or did he miss some important point in one of the other estate types?  So in the "what was he thinking?" question posed by attorney(s), that shall remain the great unknown.

 

I'm figuring out our responsibilities are of a moral variety, not legal or financial, and this is where the challenges lie. There are some misconceptions that perhaps the house is "leverage" in in dealing with behavioral issues. I'm of the firm belief that they are completely unrelated (although it has taken me a little effort to come to this conclusion). The feedback here has been very insightful toward maintaining a neutral position, so you have my gratitude!

 

One co-owner is of the understanding that JTWROS limits the ability to assign that portion to the co-owner's descendants in his/her own will.  That co-owner is talking to an attorney, but has not funded a retainer.  This co-owner has no litigation experience to draw from and a is a little too trusting in information from the attorney that appears to me to be "baiting" to obtain a retainer. Not sure if I said it before, but I have a $50,000 t-shirt having done the same earlier in life.  Legal fees rack up fast and risk exceeding the value of the asset that is the subject of conflict.

 

The widow may be aware that filial laws exist. While low risk as they haven't been enforced for a decade or two shy of a hundred years, We don't want to be the test case that updates that timeline. If the children co-owners are in ANY way responsible for her long-term care and/or medical expenses based on filial law, that, too, becomes a liability on the house.  

 

Emotions are running high.  There is a history of the widow's behavior the children find questionable, a seeming position of the widow, "if I can't have what I want, I'll do what I can to keep this tied up until there's nothing left."  It is all circling around the F.E.A.R. acronym = False Evidence Appearing Real.  In that situation - the best strategy is to collect the facts.

 

For me, if there's any monetary concern, it's about keeping what I currently have where it belongs - in my wallet - and the way I am attempting to do so is to keep attorneys out of it.

 

Oh, and the buying each other out - no one is really in the position to do so at this time.

 

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19 hours ago, pg1067 said:

You didn't answer what is probably the most important question I asked:

 

 

Unless you tell us otherwise, I'm going to assume the answer is yes.

 

 

I cannot conceive of any reason why you would have a "LEGAL obligation[] . . . to the widow to determine strategies to balance her desires" (whatever exactly that means).  In fact, it's not apparent to me that you have any legal obligations whatsoever to your stepmother.

 

I don't know.  As far as I can tell, you and some unstated number of siblings co-own a home with someone to whom you're not related.  That she is (or was) your stepmother and that the home used to be owned by your father are facts of little, if any, legal relevance.  I already explained the law regarding one of many co-owners in exclusive possession.

You have made safe assumptions.  

Quote

You haven't said so clearly, but I'm guessing you no longer want to co-own the property (and maybe your siblings feel the same).  Beyond that, however, I have no idea what result you'd like to see occur.  You vaguely alluded to a partition action, which suggests to me that all you want is money (i.e., you don't want to end up owning the home).  If that's the case, then, before you sue for partition, you ought to approach your fellow co-owners to see if any of them wants to buy out your interest.  My guess is that maybe your stepmother would like to stay in the home, so maybe the issue is whether or not she can afford to buy out you (and your siblings) or whether she can qualify for a loan against the property.  There are many possible options here, so I suggest you consult with a local real estate attorney.

Thought initially that maybe we didn't want to co-own. And there's the possibility that in changing the JTWROS to TIC (as none are in a position to buy the others out just yet), we might have some additional benefit. There is an influence of another co-owner that I'm very close with, but as I digest the feedback here, my position and thoughts are shifting.  The issues with Dad's widow have nothing to do with the business end of this, and for ANY of the co-owners to make an attempt to leverage the house (or co-mingle it into the discussion) in personal matters is inappropriate at best.

 

My advice has become "do the research, figure out what the options are, let me know what you decide", as it sounds like there is little to no impact to other co-owners if one decides to change his/her type of co-ownership to TIC and locks in on a percentage ownership, leaving the remaining percentage interest as JTWROS.  That's in conflict with the "baiting" behavior of one attorney, but alas, I think the attorney is a family law attorney that focuses on wills/estates, and not a real estate attorney.  The attorney's goal is to get the co-owner's business to create the co-owner's will, and "I'll have to consult with a real estate attorney" is the big red flag - to ME - that perhaps the co-owner might be barking up the wrong tree to understand what's going on with this deed.  This co-owner's primary concern is being able to bequeath to heirs, and  that co-owner is attempting to gauge the best plan of action.  And it sounds to me like it's a personal decision, not one that must be "one for all and all for one".

 

I, personally, see no need to change anything about my title/type of ownership:  a. I am not impacted by the widow's perceived questionable behavior (I'm the no B.S. personality) and b. if I died TODAY, what little I have will go through probate as I do not have a will (yet).  My heirs wouldn't get something I don't have. My sibling co-owner is a step ahead of me in this realm.

 

Dad's widow?  Who knows what she wants?  That's part of the problem, she says different things to different people and is a moving target.  Wants have been presented as "I need this" and asking for co-owners to assume debt (jointly) to provide it.  Discussions of selling the property seem to hint at turning the full value into another jointly owned asset (to which the other co-owners agree "Not just no, but hell no".).  We have ONE option that has been presented as a re-investment consideration, but not to her liking, thus she denied moving that direction.

 

You tell me who is looking for $$$?

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Hi @HotMess_123

 

Welcome to the community and thanks for posting! You may want to consider conferring with an experienced real estate or estate planning attorney. Based on the complexity of your situation, it may be worth your while to be sure you understand the ramifications of severing the joint tenancy.

 

Best of luck!

The FindLaw.com Team

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39 minutes ago, FindLaw_RE said:

Hi @HotMess_123

 

Welcome to the community and thanks for posting! You may want to consider conferring with an experienced real estate or estate planning attorney. Based on the complexity of your situation, it may be worth your while to be sure you understand the ramifications of severing the joint tenancy.

 

WE ARE! LOL

 

39 minutes ago, FindLaw_RE said:

Best of luck!

The FindLaw.com Team

 

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