Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“My wife’s mother and father purchased a property that has since then turned into a very successful lodge. About ten years ago they divorced, but he did not sell his half to her-nor was she awarded it in court. He later died. Now My wife’s mother and current husband are trying to sell the place. We think that my wife’s father’s half ownership of property would go to his daughter (my wife) when he died, and therefore she would be half owner of the property. Is this the case? Thank you so much. I enjoy reading your Q/A.”The answer is, it depends.
Question: First, it depends on how title to the property was held. You can check this by looking at the most recent deed. There are two ways that property is typically held by more than one person (three if you are in a community property state, but since you said they divorced that doesn’t matter).If they held the property as joint tenants (sometimes called joint tenancy with right of survivorship or similar language), then when one party dies the other party automatically gets the entire property. Typically, you do need to record a declaration along with a copy of the death certificate, but that’s all.
Answer:
If, on the other hand, they held the property as tenants in common, then each party’s half of the property passes to their heirs on death in the same way that all his other assets would: according to the terms of his will, if there was one, or according to the intestacy laws of your state if there was no will. In this case, you may need to open a probate proceeding (if this hasn’t been done already) in order to complete the transfer to the heirs.
