Legal Question in Wills and Trusts in California
The scenario: 3 brothers. Their mother leaves all three brothers her home . Instead of them taking title as joint tenants as what was her intention, the lawyer draws the paperwork up as them holding title as tenants in common each with a 1/3 interest in the home. They didn't know what they signed and now its water under the bridge. But now one of the brothers dies, he dies without a will but his interest will pass to his children. An attorney advises the family that if the assets do not exceed 50,000 (they do not) a simpler procedure rather than a "full blown probate " procedure can be done and with this in mind a probate appraiser appraises the home at 20,000 basing his appraisal on the value of the home at the time of death of the brother.(This is a very broken down property.) I am a Real Estate Broker. I have the property "sold" for 50,000 cash as is. Will the children of the deceased brother be entitled to a third of the 20,000 appraised value OR the 50.000 which I have "sold " the property for. The other two brothers are as mad as hornets that these children are receiving anything as the intention was for a joint tenancy situation which would have eliminated this problem. Thank-You It is appreciated. Susan Rogers /Broker
2 Answers from Attorneys
The children of the deceased brother are entitled to 1/3 of the proceeds. Whether or not is was the mother's wish for the brothers to take title as joint tenants, if she left the property to all three of them outright in equal shares, the lawyer was correct to put them on title as tenants in common.
You have to consider it this way - once the administration of the deceased brother's estate is complete, whether it is by an affidavit for real property of limited value or even a probate, his estate passes to his children as he had no surviving spouse. His children will be signing the grant deed conveying the property to the buyer you found and collectively, they own one-third of the property and get one-third of the net proceeds of sale.
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