A two family was owned by myself and a friend. We both lived in the house.(separate aparments) My friend died and her in her will (2005) her share of the property was left to me. Our deed/title read: "common in tentants" not "joint tenants in common".
What are my legal rights during probate? Can I rent the property now, notify the executrix to remove the items out of the deceased apartment? Or do I have to wait until probate ends and wait for the executrix to sign the deed/title over to me?
Houses are valuable; this is really a situation where you should get an attorney to protect your interests.
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The recently enacted Uniform Probate Code makes answering this question trickier than you may think. The answer is going to depend on when the probate was filed, when it was allowed, and whether it has been at least one year since the date of death.
You should talk with an attorney who routinely handles probate issues and get some guidance so that you can preserve your rights. This may mean paying for a couple of hours of time, but it will be worth it.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
Based on your description above, it sounds as though you own the entire property. However, I believe your ownership of the devised share of the property is somewhat subject to the executrix's power to sell the share of the property if necessary to satisfy the debts or claims of your friend and her estate. If the estate does not have an attorney, you should recommend that an attorney be retained to make sure that title to the property passes to you cleanly.
Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. To schedule a consultation with a lawyer, and obtain advice and review of your specific legal issue, please call us today at 617-357-4898 or visit us at www.vaughnmartel.com.
Discalimer -- I am not licensed in MA
I will leave the probate issues to the MA attorneys. Probate can vary widely from state to state.
With respect to title:
Joint Tenancy is a will substitute. If one joint tenant dies, then that person's interest is AUTOMATICALLY transferred to the other joint tenant(s). A joint tenant may only be a person; it cannot be a trust, corporation, or other legal entity, as the artificial entities cannot die.
Tenants in common own a fractional part in the property. For example, if there are 2 tenants in common, then they each own a 1/2 interest in the property. If one of the tenants in common dies, then the 1/2 interest in the property will have to be probated and title transferred by order of the court. So it would follow that if there are 4 tenants in common, then each owns a 1/4 interest in the property, irrespective of the death of the other tenants.
It would be worthwhile to consult with a local probate attorney. As you probably understand, as a tenant in common, half the property (an undivided one half) is in your friend's estate, and would pass either according to laws of intestacy or according to the will if it is "proved & allowed" informally or formally, in the probate court.
Ownership of property passing under the will "relates back" to the date of death, subject to the debts of the decedent and costs of administration. That is, if the estate was without assets to pay the debts of the decedent and or the administration costs, the executor could look to the real estate to cover the difference. If the estate is solvent, the executor can let you take care of the apartment, but I wouldn't rush the executor to get stuff out inordinately fast if you want unfettered control of the apartment thereafter. So, the Executor can let you take care of the real estate, if they determine it is appropriate.
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