I have a client who has been on title since 2006 with 2 other people. One of them recently passed away, so the two are left. This leaves the remaining 2 holding title 50/50. My client wants to sell the home and split the proceeds, but the other person on title does not. Theey keep saying that the property was mentioned in a Will, and that they need to wait etc... While I have no experience in the laws behind Wills and Probate, I do know that the person who passed away had no debt and no obligations. I have suggested they hire an attorney since they want to sell, and the other person does not. Does anyone know how this can be handled quickly, since the are not communicating and able to handle this on their own?
It all depends on how title was held. If they held as Joint Tenants then the Interest the deceased party held would go the remaining Joint Tenants. They would need to file and Affidavit Death of Joint Tenant with an original Death Certificate with the county. Most people will hold as Joint Tenants to avoid probate. If they held title as Tenants in common that would most likely require probate of some type. I don't think the property being mentioned in a will hold up the sale of the property if the decedent knowingly entered into Joint Tenancy. The seller that wants to sell might have to go to court to try to get a Court Order requiring the other party to join in in the sale of the property. I have a file in escrow now where the Court assigned a professional mediator to act on behalf of two sellers who were not cooperating with each other.
@Shawn Hudson Yes, as I mentioned in the post, it is held as joint tenants for the last 10 years. All parties agreed to this and have been fine with it for 10 years, but one has passed away. Thanks for your help!
Absent evidence to the contrary, the joint tenancy would have to gave been broken during the lifetime of the decedent and then you'd have a TIC as to the Decedent's 33.33% interest and a JT as to the two remaining joint tenant for the other 66.667%
Fortunately, that probably did not occur.
Now, what you'll have is, as @Shawn Hudson describes, is two JT's with undivided! equal interests, however unless the joint tenancy is broken unilaterally by either party.
Upon terminating the joint tenancy, the moving party will have to file a partition action. That's about $35-50K per side on average.
Other than girding the other party to sell, the TIC owner can sell their fractional interest or swap for some other consideration.
Sound ugly? Yep. Could be