Legal Question in Wills and Trusts in West Virginia

Re: Landlocked

The options for your mother lie largely within the wording of the will. There are several different possibilities. Two common ways are holding property either as joint tenants or as tenants in common.

Her rights and potential course of action vary considerably based on her status of ownership.

For instance, if she holds as a joint tenant then consider this. Under joint tenancy, the deceased's ownership interest automatically is transferred to surviving joint tenant(s) upon the

death of any joint tenant. Upon the death of one of two joint tenants, the ownership interest of the deceased passes to

the survivor and the joint tenancy ends. If three or more persons are joint tenants and one dies, the ownership interest of

the deceased is divided equally among all surviving joint tenants and the joint tenancy continues. So you see that equal shares is an essential aspect of joint tenancy.

In some circumstances, joint tenancy can be terminated inadvertently by actions resulting in partial liquidation of the joint

tenancy asset. In some jurisdictions, increasing debt on joint tenancy property is considered to be a partial liquidation

and has been treated as a termination of the joint tenancy. A joint tenancy ownership interest can be sold by a joint

tenant with or without the agreement of the other joint tenant(s).

On the other hand, tenants in common is a way of sharing ownership of property among two or more persons in which each tenant holds an

undivided interest in the property, and the tenants may own interests of differing sizes. A tenants in common ownership interest can be purchased, sold, gifted, bequeathed by will, or inherited, and is subject

to property taxes, gift tax, estate and inheritance taxes in the same manner as any property held in fee simple (single)

ownership. Upon the death of a tenant in common, his or her interest in the property passes through inheritance as

directed in the will or other estate planning documentation and does not divide among the other owners as there is no

right of survivorship � an important difference from joint tenancy ownership.

As you see, the matter is not as simple as it appears. Based on the little bit of information you gave, it appears that a joint tenancy applies but this cannot be stated with certainty. One possibility is that any joint tenant may force a division of the property by going to court and requesting that it be partitioned. Thus she will hold 1/3 of the property in fee simple. Mediation may be an alternative but only where the others are willing to sell in the first instance. Mediation usually resolves differences dealing with the terms of sale.

Good luck in re-uniting your family.

DISCLAIMER: Nothing in this correspondence is intended to be legal advice, nor should it be contrued as such. Please consult an attorney licensed in your jurisdiction for legal advice.