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Thursday, December 17, 2020

Mother regrets adding daughter to title. Is severing the title a possibility?

Since we have been talking a lot lately about parents and their homes in the context of estate planning, I thought this letter from a daughter trying to deal with her mother's property would round out the group. In this case, the mother is still alive and hoping to undo the arrangements already in place. Below are the note from a reader and my comments on it:

My Mom put my Sister and I on the Deed to her home over 20 years ago. My elderly Mom now has Stage Four Cancer and lives alone. My sister and her have not spoken to each other in over 4 years (their relationship was always strained). My Mom would like to have her removed from the Deed but we all know she will not sign off on this. My Mom wants here share to go to me. I am the Executor of her Will and have POA. I am not sure if there is anything else I can do do avoid my sister getting a hold of her share of my Mom's Estate. This is such a stressful time for her emotionally, physically and I wanted to try to take some of this burden off from her, But after reading your very informative posts. I think that my sister will get her 20% share of Mom's home. Or is she in fact entitled to 50% when Mom passes?

Your note illustrates exactly what happens when a parent adds a child to the title of her home. The parent still thinks of it as her home and wants to behave as if its hers, but in reality, it is not. At least, not exclusively. Once your mother added another owner, she created legal rights for the new owner, in this case, your sister. Your mother can't take it back now.

Unfortunately, parents often like to add names to the title to their home as if it were the same as adding an item to a grocery list on the fridge. If you don't want the item any longer, scratch it off the list. It just doesn't work that way. Having your name on the title to a property means that you own it and you have rights that mean you cannot just simply be tossed off the title because someone doesn't want you there. 

As you have said, nobody expects your sister to agree to have the property transfer out of her name. That is unfortunate, but hardly surprising. Let's look at what will happen under current circumstances.

I am not sure where you found the number of 20%. That math doesn't work out for me.

You haven't said whether your mother added the two of you as joint owners or as tenants-in-common. I am going to assume joint ownership since that is by far the most usual scenario. Joint ownership carries with it a right of survivorship. Therefore, if your mother passes away and you and your sister are both on the title, the two of you sisters will be the new owners by right of survivorship.

This isn't quite the same as saying your sister owns 50% and you own 50%. Sure, if you sold the property you would each take 50% of the proceeds. But before that, there is no 50/50 split. For example, your sister could refuse to sell the house. The whole house. Not just her share. If one of you passed away while you were joint owners, there is nothing for you to leave to your own children because the surviving sister would take the whole house by right of survivorship.

Assuming that you two were added as joint owners, then there is nothing your mother can do in her will to change the ownership arrangement that will arise after she passes. The joint ownership arrangement means that the house does not fall into the estate and is not controlled by the will.

I understand that because your mother is alive and has granted you Power of Attorney, you are wondering what you can do to carry out your mother's instructions and limit your sister's ownership of your mother's property. Using a Power of Attorney, certainly you have the authority to deal with your mother's house, but only to the extent that she owns it. There is nothing you, using the Power of Attorney, can do to overcome the fact that your sister is a part owner of the house. You could, of course, ask her to transfer it back to your mother, but as you have said, that is unlikely to happen.

Something to think about is severing the title to the house. Right now, it appears that each of you three women owns 1/3 of the property. If your mother passes away, her share disappears and you and your sister would each own 1/2 of the property. Severing the title means, basically, changing from joint ownership to tenants-in-common so that your sister's share does not increase upon your mother's death. Because your sister is not cooperating and matters cannot be done by way of agreement, the severing would have to be done by a court. Again, this is because owners have rights and can't just be removed by other owners.

Severing a title costs money, as to all court processes, so think carefully about your options before deciding to go ahead. 

It's too bad that things worked out this way. Your mother was probably trying to do something good for her daughters. I wish she had had legal advice. 

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