Tenancy in Common

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 I have my name along with my mother’s name on the property deed of my mother’s home which I believe to be “Tenancy in Common” since there is no other wording. She has died. My brother is the Personal Representative identified in her will which states that all of her estate be divided equally between her heirs.

I want to purchase the home by refinancing it.

There is an additional signed document that my brother prepared that reads:

“The refinancing needs a addition to the Warranty Deed. If (my mother) passes prior to the completion of the refinancing the Warranty Deed reverts back to the estate for resale to (me). At that time the sale as a Mortgage can go into effect.”

Under these conditions, does the “Tenancy in Common” still apply such that I  retain ownership of half of the property?

STOP!

Don't sign anything or do anything untill you've taken the deed to a real estate attorney and find out the who's who and the what's what.

At best you already own the house.

At worse, you own a half interest and would only have to buy out the other half.

Moving forward without your own lawyer could be disastrous.

Thanks a j .....  I certainly have no plans to sign anything. As much as I don't want to spend money on an attorney I'm afraid you are correct.

What do you make of my brother's document regarding "The refinancing needs a ......"?

mpbarber:

Thanks a j .....  I certainly have no plans to sign anything. As much as I don't want to spend money on an attorney I'm afraid you are correct.

I don't imagine that it will cost you more than a couple of hundred to have the deed looked at and an opinion rendered. Might include having the lawyer write a brief letter of explanation to your brother.

mpbarber:

What do you make of my brother's document regarding

"The refinancing needs a addition to the Warranty Deed. If Helen I. Miller (my mother) passes prior to the completion of the refinancing the Warranty Deed reverts back to the estate for resale to Michael P. Barber (me). At that time the sale as a Mortgage can go into effect."

Gibberish.

Somebody trying to use quasi legal language when he hasn't got a clue.

Keep in mind that deeds don't get "added to." It's a common misconception.

Any change in a deed requires a new deed to be drawn up and signed by all the signatories of the first deed.

That means that your signature would be required for your brother to accomplish that "addition."

Any time somebody wants your signature that gives you a great deal of power. Power that you lose the moment you sign.

Look up  and get a copy of the deed --its a critical starting point--and why pay attorney to go get it if its an easy one for you to do.

Even if the deed is unclear--its quite likely state law or case law spells out the default meaning--and that may be critical as well--in my state it might well be JWROS not TIC but your state is the one that counts.

Even if you were to own 1/2 you probably have whatever the will says as to rest too.

Do not sign stuff until you understand it.

Thanks again......

 Since my brother has already contracted a lawyer, I'm going to prepare a list of questions for him to ask her. Understanding of course that there may be an inclination to answer in his favor. If I thhink that is happening I can then take her responses to another attorney.

 My feelings exactly about the "document".

I think you totally unwise to deal with your brother and an attorney who is being paid to see things your brothers way--and a list of questions in a large degree tips off a potential adversary to what you don't know.

Thanks Drew,

 I understand your point about the "potential adversary" and in a way, this should help me determine if in fact I have one. It also sends a clear message to my brother that I have a lot of knowledge about this and that he needs to "stay on his toes". And, as I said, I can always hire my own attorney. The other thing is that since I am living in the home with a lease agreement signed by my mother, I can stay here until my brother figures out a way to evict me. I can also file a petition with the probate court to remove my brother as the PR and tie up the estate keeping him from getting his as well as the other 2 heirs inheritance. I don't really need the money so it doesn't create a problem for me to delay the closing of the estate. The other factor in this is that I in fact have a legitimate bases for having my brother removed as PR as a result of the inappropriate things he has done, thus avoiding any "frivilous" action on my part.

I would like your opinion on the document my brother created and had my mother sign:

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"The refinancing needs a addition to the Warranty Deed. If  (my mother) passes prior to the completion of the refinancing the Warranty Deed reverts back to the estate for resale to  (me). At that time the sale as a Mortgage can go into effect."

mike

Laymans take:

I don't know what your so called lease is with Mom --it may or may not severely limit what the executor can do..

If you own 1/2 of the place it will be darn hard to evict you--very remote.   Place gets foreclosed, well that is a different ball game--but a true lease might even give you some protection in that case too. .

That docuement your brother had your Mom sign could be DEADLY as to estates options ---do not let it out of your sight! Worst case for the estate its a codicile to the will which directs estates interest be sold to you--now I really doubt it is a codicle --but if folks go about writing stuff they don't understand ==strange stuff may result

Absent and other debts and issues --you may own 1/2 of the place as your share by TIC and 1/4 of the other 1/2 as your share by will .

Now for the sake of debate--just what do you think the open market value is for 1/2 a home that may or may not be encumbered by a safely ensconced tenant paying low rent.

I may totally all wet--then again I may not be so wet.

The lease I have with Mom simply states that I will pay her $500 per month until she dies and then purchase the house using the lease money I have paid toward the purchase (actually, since my name is on the deed, the bank told me I can refinance thus avoiding a downpayment).

I estimate the property to be worth $115,000. However, I can't get the financing until the estate is settled and I need the financing to pay off/settle the estate.

A bit of a catch 22. I'm currently trying to find out how this could work. My guess is that there may have to be a simultaneous financing/estate closing.

My brother is fine with me buying the place and I think he understands the benefit of it. He's a real control freak though (as evidenced by the note he wrote up and got signed) so I'm trying to deal with that. Actually, I was hoping to be able to buy the house without having to deal with him at all.

That's why I'm on this site trying to figure all this out to determine my options.

That may not be the only intrepretation of that so called lease you have with Mom and you'd be wise not to assume too much too soon.

Yes as a practical matter a simultaneous refinance, you hand estate money  and deed transfer from estate to you would work--and that requires you deal with executor.

Just for starters tell me what you think the approximate buy out number might be ----and how you arrived at same.....

mpbarber:

The refinancing needs a addition to the Warranty Deed. If (my mother) passes prior to the completion of the refinancing the Warranty Deed reverts back to the estate for resale to (me). At that time the sale as a Mortgage can go into effect."

My take is that it's not a codicil to the will because it doesn't say it is and I'm guessing that it's not signed and witnessed the way a codicil is supposed to be.

So, if it's not a codicil, is it a contract. I think not. For one thing, it doesn't meet many of the required elements of a contract. It certainly isn't enforceable against you because you are not a party to the contract and you already own your half interest in the house. Nobody can take that away from you without your approval (other than foreclosure which appears not to be an issue).

mpbarber:

The lease I have with Mom simply states that I will pay her $500 per month until she dies and then purchase the house using the lease money I have paid toward the purchase (actually, since my name is on the deed, the bank told me I can refinance thus avoiding a downpayment).

I estimate the property to be worth $115,000. However, I can't get the financing until the estate is settled and I need the financing to pay off/settle the estate.

Actually, you can get the financing pre-qualified and pre-approved (there is a distinction, so get both). Keep in mind that you already own a half interest in the house so you would only have to finance $57,500 less whatever the $500 per month totals (good thing you got that in writing). Getting a loan for 50% of the value (or less) is virtually a slam dunk. Once you get a committment for the loan have the bank arrange for a written appraisal by a professional appraiser. Even though you'll pay for it, it'll be independent of you and your brother so it will be difficult for your brother to argue that the house is worth more than what you say it is.

mpbarber:

My guess is that there may have to be a simultaneous financing/estate closing.

I wouldn't think so.

The estate can sell an asset at any time during the probate process. Doesn't have to wait till the estate is closed.

Buying the estate's interest in the property would be just like buying a house from anybody else.

1.Your post where you state your lease with Mom calls for your ability to purchase the property using the lease fundsalready paid  towards the purchase  is unclear to me--please try to explain what you think it means or quote it more accurately .

2. Who is on the mortgage-both of you, mom or waht -and about how much is balance due.

My guess is your brother as executor wants you to pay a lot for the home-- but I'm trying to think of  issues in your favor ------and you might hold more cards than meet the eye-----

Naturally, if you're a co-owner of the property, there's no way your brother can "evict" you.  I'm finding it a bit hard to understand why you don't understand you're an owner of the property.  :)

Absent an actual mention of "joint tenant[cy]" in the deed, the law deems you two to own as TIC (in other words, if there is no mention of specific percentages in the deed itself or another contract/agreement, 50/50).

Not sure why there was a "lease" as to the home, since you're a co-owner and already had full rights to be there.  I gather mom covered the mortgage, and perhaps hers is the only name on it (or you both are on it, but then it wouldn't make sense for you to be paying your mother "rent" each month vs., what I extrapolate, this was something of a "downpayment" arrangement as it relates to buying from her/her estate).

So you figure out what the equity is in the house -- if ANY -- divide that number in half, then subtract whatever the $500/month totaled:  that's roughly what you owe the estate for your mom's interest in the place.  (All that said, technically speaking, you only need to come up with that number less 25% to represent your interest in it.  Otherwise, you'll just get it back from the estate when the estate proceeds are divvied up -- assuming estate debt doesn't eat up everything ... since I gather your mom's is the only name on that mortgage.)

If the estate/probate case isn't closed by the time you want to buy the property, that's okay.  Your brother can sign a deed as it relates to your mom's interest *on behalf of the estate*.

You haven't said anything to indicate that your brother's done anything that a court would see as worthy of removing him as PR.

"The other factor in this is that I in fact have a legitimate bases for having my brother removed as PR as a result of the inappropriate things he has done..."

I didn't read every post, but you haven't indicated so far anything in this vein.

The document is gibberish.

By the way, one obvious point:  I presume you are ON RECORD as a co-owner/that the deed with you and your mom's name on it was filed among the land records.  (Even if it isn't, that doesn't mean the deed is no good, but you'd discuss with a local real estate attorney.)