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Jewish World Review June 2, 2008 / 28 Iyar 5768 Property law overrides will By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My mother died in the mid-1990s. Dad remarried in 2004 when he was an "old" 78 and my "stepmother" a "young" 62. Against advice, he refused to even talk about, much less sign, a premarital agreement because they were "in love." She insisted that Dad sell the home he and my mother had shared and buy a new condominium with "no memories" other than theirs, as she put it. Again, against the advice of his lawyer and family, Dad sold the home where we had grown up for $275,000 and purchased a condominium at the lake about 50 miles away where they moved. He moved all of his accounts to another broker and changed his power of attorney using a new lawyer. Between the time of the move and Dad's death six months ago, he never seemed to have time to spend with us. When we called, she was in the background telling him what to say. After he died, she filed his will and the lawyer sent us a copy. When we learned that he had left her half of his assets and the other half to my brother and me, we felt bad that we had called her a gold-digger. But when we received the inventory, we were shocked to see that, in essence, my brother and I would share a grand total of $776 and a few pieces of personal property. According to the lawyer we hired, our stepmother received everything else because of the manner in which the condominium and accounts had been titled. Although we believe that Dad never understood what he was doing about these accounts, the lawyer has told us not to waste our money contesting the will. I hope you will print this message for your readers. It's not so much that my brother and I were looking for a windfall, but that Dad and Mom had always told us that no one other than my brother and me would benefit from their hard work. A: Unfortunately, what your mother and father may have intended while both were living and neither had remarried carries no weight unless their plan was set out in written documents that could stand the test of time. No matter what you may think of his second wife, it appears that either your Dad spent his last years in romantic bliss or was hounded to create an estate plan that automatically benefited your stepmother at his death, regardless of the terms of his will. It is important to understand that the manner in which real property can be owned by two or more individuals is grounded in property law that varies from state to state. Should more than one person own the same property, they are known as co-tenants, joint tenants or co-owners. Then there is joint tenancy or joint tenancy with the right of survivorship. In other words, the manner in which the individuals own property determines their rights to sell or will their interests or to terminate their joint ownership. And each provides for different rights and responsibilities. In some states, a deed transferring property to a husband and wife automatically conveys the property in a form known as "tenants by the entirety" unless the deed contains a specific declaration that some other form of joint ownership is being created. If there was a "tenants by the entirety"-type joint ownership, your father's interest in the property terminated at his death — leaving your stepmother as the sole owner of the property. For this reason, the terms of your father's will can't change this result, and his will has no effect upon the title to the real property. Where there is "conveyance by tenancy by the entirety," the result can be changed if the husband and wife divorce but otherwise can't be unilaterally changed by one spouse. But without divorce, both spouses may participate in changing the ownership status, meaning that if both spouses agree, a transfer to either spouse can take place. Co-owners, irrespective of the type of tenancy, share certain rights relative to each other and to the property, except to the extent they have modified these rights through an agreement among themselves. The methods by which property is titled are generally ignored by consumers when they are in the office of the closing attorney. This is a mistake. Because of the depth of these issues, more will be covered next week. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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