who owns what?
April 27, 2012 4:36 PM Subscribe
Joint tenancy or tenancy in common?
Joe died, he left his property (an unmortgaged house, worth aprox $150K) to all three surviving children equally. One sibling resides in the house. The question has come up: do the survivors want joint tenancy or tenancy in common?
Also, should the sibling who resides in the house pay rent? Currently, he does not pay rent. Should this rent be put into an escrow account for property taxes and repairs?
I suppose an estate lawyer should be contacted, but we are poor.
Joe died, he left his property (an unmortgaged house, worth aprox $150K) to all three surviving children equally. One sibling resides in the house. The question has come up: do the survivors want joint tenancy or tenancy in common?
Also, should the sibling who resides in the house pay rent? Currently, he does not pay rent. Should this rent be put into an escrow account for property taxes and repairs?
I suppose an estate lawyer should be contacted, but we are poor.
You need an estate lawyer. There's no way around it. No one competent to do so will offer you legal advice on AskMe.
I can say that the main difference between joint tenancy and tenancy in common is the right of survivorship. If Jason holds property under a joint tenancy, and Jason dies, then title automatically goes to the other joint tenants. Jason's heirs get nothing because the other tenants have the right of survivorship. Tenancy in common doesn't work this way. Jason's heirs get their share of the property upon Jason's death, and then can charge rent or force a sale or whatever else is reasonable in the circumstances to get the benefit of their share. Tenancy in common also allows fractional ownership (i.e. tenants can own a certain percentage of the house).
That said, you need a lawyer. Joe's will should stipulate the nature of the tenancy; if not, or if he died without a will, statute will decide. If you're looking at setting up something else, there are options besides joint tenancy and tenancy in common. Either way, you need a lawyer.
posted by smorange at 4:54 PM on April 27, 2012
I can say that the main difference between joint tenancy and tenancy in common is the right of survivorship. If Jason holds property under a joint tenancy, and Jason dies, then title automatically goes to the other joint tenants. Jason's heirs get nothing because the other tenants have the right of survivorship. Tenancy in common doesn't work this way. Jason's heirs get their share of the property upon Jason's death, and then can charge rent or force a sale or whatever else is reasonable in the circumstances to get the benefit of their share. Tenancy in common also allows fractional ownership (i.e. tenants can own a certain percentage of the house).
That said, you need a lawyer. Joe's will should stipulate the nature of the tenancy; if not, or if he died without a will, statute will decide. If you're looking at setting up something else, there are options besides joint tenancy and tenancy in common. Either way, you need a lawyer.
posted by smorange at 4:54 PM on April 27, 2012
Not a lawyer, but in finance terms, JT is generally with rights of survivorship. So if there are three kids and they go with JT and one kid dies, the other two inherit the remainder. With TIC, each person owns a portion and their portion passes to their estate. So if there are three kids and they go with TIC and one kid dies, the kid who died's estate would own their portion. Have no idea if this works the same in real estate.
A consultation with a lawyer seems work the money. Doesn't mean you have to retain them, but you can spend some cash to get a few basic answers to get started maybe.
And by kids, I mean, the three siblings.
On preview: What Jessamyn said. =)
posted by cyniczny at 4:57 PM on April 27, 2012
A consultation with a lawyer seems work the money. Doesn't mean you have to retain them, but you can spend some cash to get a few basic answers to get started maybe.
And by kids, I mean, the three siblings.
On preview: What Jessamyn said. =)
posted by cyniczny at 4:57 PM on April 27, 2012
Regarding rent, thats more of a social question than a legal question so i feel qualified to weigh in. A couple of factors i would look at are
a) if he wasnt living there, what would you do with the house? (opportunity cost to the other two)
B) if he wasnt living there, what would he be paying for somewhere else? (benefit to him)
To me it sounds fair that he is paying some rent and putting it into a house maintenance fund sounds great. In some families it would make sense for him to live there free - say he is much less well off than the other two, or the family tends towards owing favours/mutual support over straight cash transactions.
posted by jacalata at 8:16 PM on April 27, 2012
a) if he wasnt living there, what would you do with the house? (opportunity cost to the other two)
B) if he wasnt living there, what would he be paying for somewhere else? (benefit to him)
To me it sounds fair that he is paying some rent and putting it into a house maintenance fund sounds great. In some families it would make sense for him to live there free - say he is much less well off than the other two, or the family tends towards owing favours/mutual support over straight cash transactions.
posted by jacalata at 8:16 PM on April 27, 2012
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- joint tenants - one person dies the others automatically own that person's share. In our case if I die, my sister automatically becomes full owner of the house.
- tenants in common - on person dies, that person's designated heirs get their share. If I die, I can leave my share of the house to anyone I want and that person then owns the house with my sister.
With tenants in common, people can own unequal shares. With joint tenancy it's assumed that everyone owns an equal share. As far as your sibling and the rent, that is one of those situations where you will have to work out what is fair and a lot of it depends on how well you get along, etc. Since you all own the house, you are all mutually responsible for the upkeep, insurance, repairs and taxes. You'll have to find a way to split that up in a manner that you find equitable.
posted by jessamyn at 4:53 PM on April 27, 2012 [2 favorites]