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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102356
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My parents purchased a home in 1964 and both of their names

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My parents purchased a home in 1964 and both of their names are XXXXX XXXXX deed. They moved to South Carolina in January, leaving the house sitting there. My sister, who lives near them, took them to an attorney to get a Will. The attorney told them that they would need to get an attorney where I live to draft a new deed and register it to allow for right of survivorship so if one dies, the other won't have to go to probate. It doesn't make sense to me, and I wanted to ask an expert if that is necessary. They live in South Carolina, not Tennessee, where the home is located. If it has to be done, can I do it since they are 90 years old and what would I need, how much would it costs, etc.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. This may or may not be necessary, and you can find out by simply asking them to take a look at their deed, but, first I have to explain the doctrine behind it.

There are generally two types of tenancies (ways to hold a title together by two or more people):

In a TENANCY IN COMMON, if A and B hold a title together and A dies, then B does not acquire the interest of A. Instead, A's interest in the property is bequeathed to heirs. Probate is necessary to take the deceased party off the title.

In a JOINT TENANCY, if A and B hold title together and A dies, then B automatically acquires A's interest. So, A's interest is NOT bequeathed to heirs, but, goes to B automatically. Probate may not be necessary.

For the creation of a joint tenancy, four unities are required, namely, unity of interest, unity of title, unity of time, and unity of possession. What this means is that if when they purchased the home in 1964, if they purchased it together, they are likely joint tenants (and if so, no need for probate).

If one purchased it separately and then placed the other's name on the deed, then they are tenants in common and if so, probate may be necessary.

So what you can do is ask them (or have an attorney look into the county records) to see how they hold the deed - tenants in common or joint tenancy.

If they hold it as tenants in common, and they want to switch it to joint tenancy to avoid probate, then they can register a NEW deed for this. However, an attorney is necessary because this involves drafting the new deed, possibly surveying, proper filing, etc. May I recommend the TN Bar referral program by county - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP. An attorney is needed in the state where the property is located.

Likely, the whole matter should not run more than $1,000 to $1,500 at the most, although it is best to speak with several attorneys before making a decision.

I hope this helps and clarifies. Good luck.

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Customer: replied 4 years ago.

They were married when they bought the house but the Shelby County Court Clerk can't seem to tell me if the deed is a joint tenancy or tenancy in common. My sister took them to an attorney in SC to get a Will and that attorney advised them to get a new deed written up in TN where it specifies if one person dies, the other gets the property without going to probate. My sister seems to think they have to travel here, in their 90s, to do this. I don't understand why the attorney didn't tell them they could retain a Memphis lawyer to rewrite the deed and register it. Also, I have no knowledge if the Will specifies who the house goes to upon their death. It's probably just a general Will. It lists my sister as #1 executor and me #2 and my brother #3. She told me I would have to go to probate and I told her I could refuse to do that. Unfortunately, my parents have made me ill all these years here and all of their abuse and they could care less about heirs. We have to pay for their funeral and burial too.


Thank you for your reply.

I don't understand why the attorney didn't tell them they could retain a Memphis lawyer to rewrite the deed and register it.

I cannot state why not, either. However, it is always good to get another opinion.

In the end, what is best is to:

1) Use a TN attorney to see what kind of deed they have, and,
2) To amend the Will if necessary.

They do not have to travel to TN to do this - this may all be done via mail and email, and all they would have to do is sign the documents from where they are.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
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