My son lives with me. I transfered the house to him and me as joint tenants with survivorship right. He has lost everything due to drug abuse. I am a widow. I have a single daughter that lives nearby. I want my daughter to watch his interests, if I go first. Neither have kids, so if I outlive my daughter it does not matter, house will go to son anyway, when I go. Can I quit claim my joint tenancy to my daughter and I, as joint tenants, with survivorship right? If I do that, then son's share will not come back to me or his sister, as a survivor and likely be taken by a creditor? Correct? Son will not cooperate in any way. I own almost nothing else, and the entire house is worth $80,000.
Real Estate Attorney
You are experiencing one of the most significant problems caused by parents conveying an interest in their real property to a child. Unfortunately for you, once you transferred a portion of your ownership in the property as joint tenants with rights of survivorship to your son, you now need his agreement and cooperation to add another child as another joint tenant. If you convey your remaining interest in the property to your daughter, you will terminate the joint tenancy and your son will own 1/2 of the property as a tenant in common and you and your daughter will own the other 1/2. This can stop him from selling the property without your and your daughter's consent, but will not stop a creditor from forcing a sale of the property to collect any debts owed by your son.
The only thing that I can think of that might help you is the possibility that the deed that was prepared conveying the joint tenancy to your son was defective in some fashion that would cause the conveyance to your son to fail. I would recommend that you meet with an experienced real estate attorney to examine the deed to your son to determine if it is defective and to possibly think of another course of action to protect your property. Good luck.
Estate Planning Attorney
The short answer to your question is yes, you can certainly quitclaim your undivided one half interest in this property to your daughter. However, since you have already conveyed the other undivided one half interest in this property to your son, his interest will remain, though it will be converted from a joint tenancy with right of survivorship to a tenancy in common. That means that his interest can be willed to whomever he wishes by will, or will pass under the laws of intestacy of this state at his passing. If he is married, you will end up co-owning the house with his widow, for example. As the previous answer suggested, this situation is a perfect example of why attorneys usually advise clients NOT to convey interests in their homestead to a child or any other party. It is much better to remain independent in the ownership and management/control of your home. Once such a deed is executed, the other party can prevent you from mortgaging the property or selling it, as a lender is not interested in accepting a mortgage of an undivided one half interest in a property. If they had to foreclose on the mortgage, they would be stuck owning the foreclosed half interest with a partner they did not know and might find difficult to work with. Second, judgments against your son do encumber his half interest in the property, and a creditor can levy on that half interest and try to force a sale. On the other hand, if your son lives in the house with you, as you state, they could not force a sale of the home because it is the homestead of both of you. It is therefore, under the Florida constitution, exempt from forced sale by creditors. Do not worry about creditors except for one who has accepted a mortgage from your son as to his undivided interest, and frankly, I know of no lender which would accept such a mortgage as collateral. Unsecured creditors, such as those incurred for medical bills or credit card debt, cannot force a sale of his homestead property to satisfy such debts.
I am sorry you are dealing with the sorrow of an addicted son. Had you not deeded an interest in the home to him, you could have him removed from the property. It might be in your best interest to consider forcing a sale of the property yourself so you could at least get away from having to live with him. This would be done by filing a petition for partition of the property, asking the court to require your son to cooperate in a sale of your house by listing it with a designated realtor, or by having the clerk sell it. This is sometimes appropriate if there is a mortgage and the joint tenant on a property is refusing to contribute his/her share of the obligations, does not contribute to taxes or insurance, and does not assist with the maintenance and debt service on a property. Consutl an attorney as to how a partition action works. I suspect, however, that you do not wish to move and that such an action would not be considered by you at this point in time. However, it is an option and frankly, you may be better off in an apartment, living alone, than dealing with a son who is engaged in substance abuse.
Good luck to you.
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