The Pitfalls of Joint Tenants with Right of Survivorship

Stepmother leaves her father, but stays on title as joint tenants with rights of survivorship

Q: My father passed away and my stepmom said that I could have the house. My father and my stepmom were married when he died but she left him over seven years ago.

The home was in both of their names with rights of survivorship. She hasn’t paid any expenses for the home for as long as I can remember. I now live in the home and while my dad was alive, I assisted him with paying his bills and mortgage. I moved away for a short period of time but moved back due to his declining health.

Since his passing I’ve been the one to pay the mortgage and all of the utilities because she said I could keep the home. I also have a voicemail from her when she called me about taking over the loan to keep the house.

Can You Have Three Joint Tenants With Rights of Survivorship?

She now says she’s going to sell the home because I won’t do what she wants me to do. She wants me to sell my dad’s belongings. What should I do?

A: First, our condolences on the loss of your father. He’s left you in a complicated situation. There’s a lot to unpack and given the complexity we’re going to strongly suggest that you speak with a local attorney who has real estate and estate law experience.

Having said that, let’s start with how your dad and stepmom owned their home. When two or more people own a home as joint tenants with rights of survivorship and one of the owners dies, the remaining living owners become the sole owners of the home. In your case, when your dad died, your stepmom became the sole owner of the home.

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

However, when couples get divorced or there are intervening circumstances that might have a court declare that a home is no longer owned by one owner or the other, you’d expect to see a court order stating that one person or the other would be the sole owner of the home. We’ll take your question at face value and assume that your stepmom may have moved away, but since she and your dad never divorced, it’s likely she never ceased being a co-owner in the home.

Here’s where state law might weigh in. Your state may have a law that says if a person abandons a property for a certain period of time, they may relinquish their ownership. Typically, these types of laws are very specific in how they are applied. They usually pertain to abandoned homes that are then cared for and taken over by others to the exclusion of the rightful owner.

We suspect that these types of laws may not apply to your situation, but you should ask the local attorney you consult if your state has such a law and if it might apply to your stepmother.

Understanding Joint Ownership in Estate Planning

That takes us to your next issue: Caring for your father and the housing expenses you paid. If you had to move in to care for your dad, perhaps you should be reimbursed for the carrying costs of the home.

If your stepmother now owns the whole property, we could imagine that you’d be entitled to reimbursement for the expenses you paid related to the home after your father’s death, including mortgage, insurance property taxes and maintenance costs.

It’s too bad your dad didn’t do anything about this while he was alive. He could have deeded his interest in the home to you and you would have been a half owner of the home with your stepmom, putting you on equal footing. Or, he could have convinced her to convey her interest in the home back to him.

Divorce May Not End Joint Tenancy Deed

Next item: You say that your stepmom said you could have the home. Unfortunately, oral promises don’t work when it comes to real estate ownership. Voicemail messages don’t count either. When it comes to real estate, written contracts count. Your stepmom could say one day that she wants you to have the home and change her mind the next day. She can do that. It’s legal.

What your stepmom can’t do is convey the ownership of the home to you by deed and then take that back. Once she signs a deed to you, and you file or record that document, the home would be yours.

From what you’ve written, she’s holding the cards. If she wants to sell, she likely has the right to do that. But you may also have the right to add up all the expenses you’ve paid through the years and force her to pay you back. We don’t know how much equity is in the home, but it’s likely that the amount you paid on her behalf will put a good dent into whatever equity she thinks she might end up with.

Selling Your Home After Your Spouse Dies Doesn’t Mean You Have to Change the Title

You’ll have to sit down and figure out exactly — to the penny. Go back through your checking account and any receipts. Take that to an attorney who can help you sort through what you can claim if she decides to sell. Then, you (and possibly the attorney) can sit down with her and plead your case. If your stepmom won’t end up with much – or anything – after paying you back, she might simply decide to let you have the house.

Otherwise, you’ll end up getting your money back. She gets the leftover funds. You might also, after looking at all the numbers, find a way to simply buy her out and keep the home. Good luck and thanks for writing in.

If you need more information , consult with an attorney who deals often with community associations. Thanks for reading our weekly column.