Estate Planning: Holding Title as Tenants in Common Causes Problems

Q: My husband died a couple of months ago. He had a living trust. I did not realize that our condo was titled as tenants in common rather than joint tenants.

When he died, I asked a friend for the name of a lawyer to assist me to deal with his estate issues. The lawyer asked for a retainer of $5,000 and he charges $400 per hour. We had to open up probate and get the condo title changed into my name. The title is now in my name and the lawyer billed me another $4,000.

We have distributed money from the estate and now he’s billed me another $3,000. For what? I don’t know, but this is becoming a money pit and I feel I am being taken advantage of. Should I change lawyers?

How Do You Change A Deed from Tenants in Common to Joint Tenants?

A: Our condolences on the loss of your husband. It looks like two unfortunate circumstances have collided into one big mess for you.

First, your late husband set up a living trust to hold title to his assets but apparently never put his interest in your home in the trust. If he had, his ownership of the property (his portion of the tenants in common ownership) would have flowed directly to you.

Second, you and your husband owned the home as tenants in common and not as joint tenants with rights of survivorship.

Can You Have Three Joint Tenants With Rights of Survivorship?

What’s the difference? If you own property with your spouse as joint tenants, when either owner dies, the remaining spouse becomes the sole owner of the property. On the other hand, tenants in common each own a 50 percent share in the property. When one of you dies, that share does not flow automatically to the other owner. The deceased owner’s share of the home would transfer according to the deceased owner’s wishes in that person’s will or as provided by the laws in which the home is located.

Now to your question. Your attorney bills out at $400 per hour and you’ve paid them $12,000 for 30 hours of work. We hope the attorney has given you an itemized list of the hours that they have spent working on your situation. We don’t know what issues your attorney has encountered, but we suppose that the attorney has had the will entered into probate, appeared before the probate court a several times, prepared motions for the court, handled the transfer of the title to the home from your husband’s estate into your name, and likely performed some other tasks.

Can a Surviving Spouse Sell the House?

While we don’t know if 30 hours is too much or just the right amount. But having a will probated, along with the related tasks required by probate court, can take time. And that time costs money. That’s why we try to help our readers steer clear of probate court.

What could you have done differently? Perhaps you could have asked the attorney more about the process. Then, the attorney could have given you a detailed understanding of the parameters of the work being done.

But here you are. So your next step is to call the attorney and find out what’s left to be done with the estate. If you’re done with the probate process, and with future billings, you’ve solved your problem. If not, this would be the time to ask what’s left and get an estimate for future billings. We don’t know if it would pay for you to find a different attorney at this time if almost everything is done. There is a cost to switching as a new attorney gets up to speed on what’s going on with your case.

Can You Sell a House If You Are on the Title but Not the Mortgage?

In talking with the attorney, you might find out that your husband’s estate was more complicated than just the home being mis-titled. You need to assert yourself or get a family member to help you talk to the attorney to understand where things are. If there’s a lot left to do and you can’t afford it, ask the attorney to recommend a different option to move forward. Perhaps there are tasks that you can take on that the attorney’s office is handling that you could do. It might be too late for most of them, but if you share in the effort, you might save some money. The goal is to finalize the probate work.

Unfortunately, once you need to open up probate for a loved one, the process can go on for some time. We’re talking months or years. There are court delays, changes in court appearances, difficulties in obtaining documentation, and the time required to respond to questions from the court. You will also need to create the accounting documentation that the probate court may need for the estate, notifying loved ones of the proceedings, deal with creditors and other financial institutions to distribute money from your late husband’s accounts and more.

We don’t know where you are in this process and it seems as though you don’t know either. So pick up the phone and call the attorney’s office. We hope the rest of the probate process is less painful.