Legal Question in Real Estate Law in California

There are two kinds of cotenancy, tenancy in common and joint tenancy. Or, the home may still be owned by the trust, in which case you are not owners of the home at all, merely co-beneficiaries of the trust.

Is the property still in the trust? If so, you are co-beneficiaries, not co-tenants, and the terms of the trust and the administration of those terms by the trustee would prevail. If the trust has distributed the property to the beneficiaries, then you and your brother would indeed be co-owners, probably as tenants in common, but it is possible to be joint tenants as well, if you took title as such upon a previous distribution by the trust.

If you are in fact tenants in common, each of you may dispose of your interest as you see fit.

If you were joint tenants, the survivor of the two of you would become the sole owner upon the death of the other. Since joint tenancies are easily severed by one owner (and thus become tenancies in common), without the permission or even the knowledge of the other, it is unwise to count on an outcome based on joint tenancy rules.

Mr. Whipple's answer is correct, but maybe less than clear. The first issue is whether or not he property is still in the trust AND by the terms of the trust is to stay there into future generations. If so, your brother has nothing to leave since his interest will end on his death. If the property is no longer in the trust, or the trust calls for it to be distributed and it just has not been yet, you brother is legally free to leave his half to whomever he wants. Depending on if it is still in the trust, and as Mr. Whipple notes whether title is as joint-tenants or tenants in common, if he died today the result may be different. But if he is entitled to ownership outside the trust, and he puts together a proper estate plan, he can leave his half to anyone. If your father wanted it to stay in the family, he needed to provide for it to stay in the trust as long as permitted under the limits of the rule against perpetuities.

I agree with Mr. Whipple. The issue is whether the property is in a trust, and subject to the terms of the trust, or was given to you both as either tenants in common, or in joint tenancy. If you hold it in joint tenancy, the next issue would be whether the joint tenancy was severed, which would create a tenancy in common.

If you are truly tenants in common, your brother can give his half to whomever he wants, assuming he properly sets up his estate plan to govern his wishes.