Here’s a question related to inheriting real estate. It comes from Marlene from Shelby Twp, who writes:
“I want to sell a home that I inherited from my mother. I owned the home together with my mother before she passed. I know this because we created the deed together about a year before she passed. My sister says that my mother left the home to both of us in her will and therefore I cannot sell the home without her permission. I looked at the will and confirmed that it does say that. What do I do now? Do I have to go to probate before I sell this home. I thought I owned it outright.
My Answer: It would be helpful to know when your mother created her will, and also the date of the deed. It is very likely that at the time she had the will drafted she had intended to leave the home to your sister. However, if later she had a deed drafted naming you as a co-owner, then the deed may prevail.
I say “may” because deeds have to state the “magic conveyance language” when property title is to be held between parties. If the deed names the two of you jointly with “rights of survivorship,” you became the sole owner of the property at the time of your mother’s death.
Tenants in Common
If, however, the deed named you and your mother as tenants in common, then you and she owned the property equally; however, upon her death, her interest would go to your sister, as stated in the will. So it could be possible that your mother did want your sister to have her interest in the property upon her death.
If this deed named you and your mother as tenants in common, then the property must be transferred by the personal representative of your mother’s estate. In other words, you will need to make sure that you and your sister probate your mother’s will. And after the probate, for you to convey marketable title to the property, you will need her permission.
You will ultimately have to have a real estate attorney review the deed in question as well as the will.
Benefit of Legal Counsel
This was a great question. It really demonstrates the powerful impact that legal conveyance language has. Many mistakes occur when people try to create deeds without the benefit of legal counsel. It also shows how different areas of the law are interrelated, and that engaging in one area of the law without professional assistance may have unintended consequences impacting on your legal rights regarding a different area of the law.
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