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socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 39180
Experience:  Retired (mostly)
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I am trying to purchase a house from my mother. The title company

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I am trying to purchase a house from my mother. The title company refused to transfer title because my deceased father's name is XXXXX XXXXX deed. Title company seems to think we need to go to probate (the will WAS entered to probate but no actions were ever taken)--which seems strange since it would appear the my Mom owns the house in entirety (so why the need for probate?). Here's what I know:

1. Parents have a joint-tenancy deed in the state of NJ.
2. Parents divorced in 1974 and judge issued decree (and we have a certified copy), stating the house transferred entirely to my mother's ownership; dad was to move out in 30 days. Mother never acted to take house from Dad (who lived there until his death and believed the divorce was never finalized).
3. Father died in 1979; his will ordered the house sold and proceeds were to divided by his kids. Obviously, the house was never sold (and was taken over by one of the do-nothing executors). All we want to do is buy this house but my Mom's lawyer is worthless (and she's 87 and has no patience for dealing with the details)...

Who really owns this house?!? How do we fix the title?
Who really owns this house?!?

A: Real property owned in a true joint tenancy (i.e., title will show something like, "Bill Seller, Grantor, hereby grants to John Doe and Jane Doe, as joint tenants with rights of survivorship, the real property herein described as follows:"), instantly transfers to the surviving joint tenant at the death of the first joint tenant. A divorce does not severe a joint tenancy and create a tenancy in common, without some express act of the parties or the court, which would be found in the divorce decree or marital settlement agreement.

Assuming a true joint tenancy, and no severance as part of the divorce judgment, then your mother owns the property outright, and no further legal action is required.

However, if the property title shows ownership as "...husband and wife," or as "tenants by the entireties," then a divorce severs the joint tenancy, and the parties become tenants in common after divorce -- which means that each party owns 50% of the property and that interest descends to that party's heirs/beneficiaries at death, and not to the surviving tenant.

Most likely, the second scenario is what has taken place with your mother's property. Otherwise, you wouldn't be asking the question, because title would have transferred without any dispute.

How do we fix the title?

A: You will need to ask the probate court to appoint a personal representative, for the sole purpose of transferring title according to the provisions of the Will.

For a competent probate attorney referral, see this link.

Hope this helps.
Customer: replied 4 years ago.

They are listed as both joint tenants AND as husband and wife on the deed (the original lawyer who looked at the deed said this was unusual). Even if the divorce severed the tenancy, the divorce judgement decreed the house transferred to my mother in the settlement. Wouldn't that mean my mother owns the house outright either way?

Listing the grantees as both joint tenants and husband and wife creates an ambiguity in the deed, making it difficult to interpret -- because the first provision states joint tenancy, while the second suggests tenancy by the entireties.

Regardless, if the divorce judgment states that ownership is vested in /transferred to your mother, then the judgment would operate as a transfer of legal title by court order, and you should be able to record a certified copy of the divorce judgment with the deed registrar/clerk to show that your mother already holds sole title to the property.

If I were a title officer, I would find that the recorded judgment closes the chain of title and vests the property entirely in your mother. Which means she can sell it to you.

If the title officer doesn't agree, then maybe you need to find a different title company. If no title company agrees, then you may be forced to sue to quiet title in your mother's name. This would be a definite pain in the a** -- but from what you've described, your father's will would have had no effect on the property, because it was not part of his estate when he died. Your mother already owned the property based on the divorce judgment.

Hope this helps.
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