Legal Question in Real Estate Law in California

Re: Surviving Tenant in Common sale of house held up by heir search?

If premises owned "in common" with another are "WILLED" to someone, then the Will (usually) must be probated, in order for there to be a disposition of the deceased "Common" Tenant's share of the premises. However, the survivor Co Tenant is free to sell their interest in the premises, provided someone is willing to purchase less than the whole property.

If the deceased' premises share or interest is the only property owned at death, the next of kin or "normal" beneficiaries, are in some instances permitted to "waive" their interest in the real property, without the necessity of probate, by documentary evidence.

The info you have already received generally appears reasonable; and is either from the Clerk's Office, or Title Company. That is probably why your question was previously rejected.

You appear to be looking for a "cheapy" short cut or way around the correct procedures. You need to Do what is necessary to finish this matter, ASAP. In any case, you need a lawyer, if you don't have one. Or, you need to listen to the one your have.

Good luck,

Phroska L. McAlister,ESQ

Re: Surviving Tenant in Common sale of house held up by heir search?

Is your nephew an attorney? If not get represented. Call me directly at (619) 222-3504.

Re: Surviving Tenant in Common sale of house held up by heir search?

First, remember that a tenancy in common and a joint tenancy differ from one another most greatly as to what happens upon the death of one co-owner. In a joint tenancy (with right of survivorship), full title vests automatically in the surviving joint tenant(s), and showing a death certificate is probably all that's needed to remove the deceased co-owner's name from title.

However, when a tenant in common dies, her ownership interest doesn't pass to the co-owner; it passes to her heirs.

In this case, it looks like the will gave your aunt a life estate, and one son the remainder interest. This means your aunt has some of the rights and duties of an owner during her lifetime, but upon her death, the half interest formerly belonging to Aunt will belong to the heir son.

Your aunt therefore owns 1/2 of the house outright, but "owns" the other 1/2 only for life, something like a lessee with zero rent.

Since she doesn't have an outright fee-simple ownership of 100% of the property, she can't sell a 100% interest......she can sell what she has, but the House's desirability and marketability is impaired by the heir-son's remainder interest.

So, ownership of the House is now divided three ways: (1) Aunt's 1/2 fee-simple interest; (2) Aunt's life estate in the other 1/2 of the fee; and (3) Heir-son's remainder interest in the 1/2, which is dormant while Aunt is alive but becomes a possessory interest upon her death.

The importance of the missing non-heir son probably relates to how the will actually reads and whether it was properly probated. If in fact the non-heir son wasn't given any interest at all in the House, he may not by essential to any transactions, but unless Friend's estate was subjected to the probate process, that fact may not be sufficiently established.

Please note that death doesn't sever a tenancy in common; it merely substitutes the decedent's heir or heirs as new owner(s) of the decedent's interest. Both Aunt and heir-son got portions of Friend's half interest. Aunt got a life estate, and heir-son got the remainder interest.

Or so it appears from the facts as I understand them. I strongly recommend retaining a California attorney to do (at minimum) the following:

1. Determine the current record title status of the House;

2. Determine whether Friend's estate was probated properly and to conclusion;

3. Determine the rights of each of Friend's sons;

4. Review the property tax, estate and gift tax, and other tax consequences of the proposed sale;

5. Obtain an appraisal of the fair market values of the various interests in the House (it looks like there are three);

6. Explain the situation, advise and recommend; and

7. Take whatever actions in court may be necessary (complete probate, sue to quiet title, etc. -- maybe not necessary, but might be.).

Re: Surviving Tenant in Common sale of house held up by heir search?

There is no right of survivorship when property is held tenants in common; each owner has the right to sell or "will" the property to anyone they want. It is inconsistent that your aunt's friend would "will" ownership to your aunt and THEN to her sons. More than likely, she left a "life estate" to your aunt, and at your aunt's death, her sons would have the right to sell or do whatever they wanted with their mother's interest. It sounds as though your aunt only has a 50% interest in the title to the house. You need to go to an attorney and take all the title documents, and/or get a chain of title from the title company, which will disclose all deeds and transfers on title.