Legal Question in Real Estate Law in California
Can a joint tenancy be legally severed?
My mother is 80 yrs old and has not been feeling due to illness. She owns a home which she has purchased and been living in for the past 15 yrs and said that she would like to sell it to split the money amongst her other children before she passes however my brother refuses to allow this to happen as he is on the title as a joint tenant. Because of this, she would like to transfer her share of interest in the property to me rather than allowing the home to fully go to him through rights of survivorship. However, because she is in joint tenancy with my brother on the title, I don't know if this can be done. Can the joint tenancy be severed in this case? What actions will I need to take that is fully legal and binding to help my mom carry out her wishes while she is still with us? Will she need to write a living trust and will this be sufficient or is there something else that she needs to do? What is the most legal and quickest way to resolve this matter? Your input/guidance is much appreciated. Thank you.
2 Answers from Attorneys
Assuming that your mom is still legally competent, and there is no written agreement between your mom and your brother to the contrary, she can sever the joint tenancy. However, she must act of her own free will, and without undue influence or coercion. If you are, figuratively speaking, "twisting her arm" or using excessive "sweet talk" to bring about your desired result, your brother may successfully challenge the result in court.
If there is a written agreement between the joint tenants regarding the joint tenancy, which would be unusual, the attempt to sever the joint tenancy may be ineffective
Having said that, it is not uncommon for one of two joint tenants to sever a joint tenancy. It is perfectly legal and, with the noted exception, does not require the permission of, or notice to, the other joint tenant.
The usual ways to carry out a severance are to record a deed to yourself or record a written instrument that evidences the intent to sever the joint tenancy. This is all spelled out in the California Civil Code's section 683.2.
After severance, the two former joint tenants become tenants in common, each with a 50% interest in the property.
Any deed or written declaration used to sever a joint tenancy should be in a format suitable for recording, must contain an accurate legal description of the property, must be signed before a notary, and then recorded.
Proper deeds and written agreement can accomplish her goal, as long as she is still legally 'competent' and understands what is being done, doing so without 'pressure' from anyone. If serious about getting legal help in doing so, feel free to contact me.
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