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Tuesday, May 22, 2012

Passing the title to the family home to the kids

A reader and his siblings recently inherited the family home from their mother, and asked me the following question about the title. As so many parents are going to pass their homes to you readers together with your siblings (despite my constantly suggesting that they don't), I thought the question would be of interest to many of you.

Here is the question:

"Our mother left the family home to my 3 siblings and myself. Each of us is listed "as to an undivided 1/4 interest". Can I conclude that this is "tenants in common", as the title certificate does not specifically say that? If this is correct, am I able to "give up" my share as I see fit? ie: sell to an outside party, give to another already on title, etc.?"

This reader is correct that the four of them are tenants in common. Whenever a title specifically says that each person on the title owns an "undivided interest" such as in this case, each owner is a tenant in common. In this case the four shares are equal, but that is not always the case with tenants in common.

Each of them owns 1/4 of the property to do with as he or she wishes.

The type of ownership is significant, as it determines an owner's ability to deal with his or her share. As the reader has correctly mentioned, a tenant in common can sell his share (assuming someone wants to buy 1/4 of a house) or pass it to another title holder. Tenancies in common are usually mentioned in wills, as any ownership of this type would fall into the estate on the death of the owner.

By way of contrast, if these four people were joint tenants rather than tenants in common, they would not be able to do any of these things. A joint tenant cannot sell or transfer a part of the joint title, and cannot leave the title to anyone in his will. The surviving joint tenants will still own the title should one of them die, which is why I always refer to joint tenancy as "last man standing".

As regular readers of this blog know, I'm not at all in favour of a parent leaving one house to four people who each have their own wishes, finances, families, and agendas. However if a parent is determined to punish the children by doing this, it's better to do as this reader's mother did and leave it to them in the will, rather than put it in joint names during the parent's lifetime.

1 comment:

  1. We are a common-law couple and were in the process of preparing our wills. We stumbled onto this site which is very very helpful, however, we noted that when our lawyer registered the deed to our property he did not inform us of the Join Tenant or the Tenant in Common option and he registered it as Joint Tenant. Can we go ahead and name a beneficiary for each of our half share or do we need to go back to our lawyer to address this and have him re-register the deed correctly?

    ReplyDelete

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