[gcc]

Can a deed be transferred, or granted, to another person (Grantee) if someone else is mentioned in the Grantor's Will, before the death of the Grantor. My Father passed away in 2004, and his Will from 1997 states that I get the house when he dies. In 2003, my brother put his name on the deed to the house, along with our father, and once our father died, he took Dad's name off the deed, and only his name appeared on the deed. I would think because I'm in the Will to get the house, that my brother should not had done that. Do I have any legal recourse?

[cdad]

You will have to research the title and go back to when the will was created. Then make a paper trail so you can follow it through. How was it that your brother got on the title and do you know how the title was written?

[Fr_Chuck]

If your dad ( and he had to) was of sound mind, when he added the brother to the deed, and the deed was recorded and your dad signed it ( your brother can not just "add" his self.

Then there is no house in the estate to be covered by the will. The will only covers things that are still in the estate at the time of death.

Should he have done it? No, Could he do it, yes, Is it legal yes if he was aware of what he was doing

[LisaB4657]

If the Deed from 2004 listed your father and brother as "joint tenants with right of survivorship (or JTWROS)" then the property passed completely to your brother at the time of your father's death. As long as your father was of sound mind at the time the Deed was made then yes, this is legal.

If the Deed listed them as tenants in common then your father's share of the house became part of his estate and his share would pass to you according to the Will.

[AK lawyer]

All true, but one isn't "added to a deed". One is given some or all of the title by the execution of a deed.

[gcc]

Thank you all for taking the time to answer my question. This is all very helpful for me.
LisaB, I have spoken to an attorney about the 'joint tenants with rights of survival', vs. 'tenants in common'; of which she called it '50/50', which has the same meaning, I presume? I think she did say if the Deed is written up as JTWROS then that would supercede the Will.
I haven't, as yet, retained the attorney to look into this matter because right now she's handling the Will to go to probate court, and by now I hope it is there. My brother is executor of the Will, and hopefully he'll carry out his responsibilities as executor, or maybe the attorney will notify me when the Will has been probated. (I've heard once a Will is actually probated that it becomes public knowledge, and I can then look it up on the Internet). Is that true?
Again, I thank everyone for their answers.
gcc

[AK lawyer]

... I have spoken to an attorney about the 'joint tenants with rights of survival', vs. 'tenants in common'; of which she called it '50/50', which has the same meaning, I presume?
...

Joint tenancy, with right of survivorship (or simply joint tenancy, it means the same thing although not quite as wordy), means that if one joint tenant dies, the other one owns the property. It doesn't go through a probate estate. On the other hand, tenancy in common means that, each person has an undivided half interest in the property. Upon death, the decedent's estate owns that half interest.

As an aside, I find it amusing that some long-ago lawyer added the redundant "with the right of survivorship" phrase in a futile attempt to make the concept easier to understand. It is funny that this unknown lawyer appears to have forgotten that adding more big words to an already difficult to understand phrase does not have the desired effect of making the concept easier, but instead tends to make it even more opaque (even requiring an unpronounceable acronym in a further futile effort to "simplify").

... I think she did say if the Deed is written up as JTWROS then that would supercede the Will. ...

I wouldn't put it as superceding the will. If in fact your father signed a deed transferring the property to himself and your brother as joint tenants, upon his death he no longer owned any interest in the property. So the will would not effectively transfer an interest in the property because he no longer had an interest.

The will continues to be effective, but not as to that property, because that property is not in his estate (not owned by him at his death).

...
I haven't, as yet, retained the attorney to look into this matter because right now she's handling the Will to go to probate court, and by now I hope it is there. My brother is executor of the Will, and hopefully he'll carry out his responsibilities as executor, or maybe the attorney will notify me when the Will has been probated.
...

You cannot retain that attorney if that attorney is representing or advising your brother regarding the will and probate. That would be a conflict of interest. There are specific requirements concerning giving you written notice of probate.

...
... (I've heard once a Will is actually probated that it becomes public knowledge, and I can then look it up on the Internet). Is that true?
...

Yes and no. When a petition to probate the will has been filed in the court, you would have the right to read the will and the rest of the court file. However it is probably not going to be online. You would have to go to the courthouse.

[LisaB4657]

Thank you all for taking the time to answer my question. This is all very helpful for me.
LisaB, I have spoken to an attorney about the 'joint tenants with rights of survival', vs. 'tenants in common'; of which she called it '50/50', which has the same meaning, I presume? I think she did say if the Deed is written up as JTWROS then that would supercede the Will.
I haven't, as yet, retained the attorney to look into this matter because right now she's handling the Will to go to probate court, and by now I hope it is there. My brother is executor of the Will, and hopefully he'll carry out his responsibilities as executor, or maybe the attorney will notify me when the Will has been probated. (I've heard once a Will is actually probated that it becomes public knowledge, and I can then look it up on the Internet). Is that true?
Again, I thank everyone for their answers.
gcc

Yes, the "tenants in common" provision would make the property ownership 50/50.

As AKlawyer said, you won't be able to personally retain the attorney to handle the property matter since she is already representing the estate. However you can still have her review the matter in her position as attorney for the estate. You should hand or send her a letter that you believe that a share of this property may be part of the estate and she should review the ownership status to determine whether it is. This way she is obligated to do so as the estate's attorney.

[gcc]

AKLawyer... so let me see if I understand this... if the Deed is written as joint tenancy, and now that my father is deceased, my brother, who's name was on the Deed before his death, would have the property as a whole? That nullifies my father bequeathing the property to me in his Will? But if the Deed is written up as tenants in common (50/50), that means since my father has died, that half the property belongs to my brother, and the other half belongs to me since the property was bequeathed to me in the Will upon the death of my father? So what's hanging in the balance, so to speak, is the way the Deed is written up as to whether I am entitled to anything.
Second... this particular attorney that's handling the probate of the Will was not retained by my brother, or myself even. Our Aunt, my father's only surviving sibling, is the one that retained this attorney to get this Will probated because my brother never did anything to get the Will probated, and our father died in 2004. My Aunt is in the Will to receive my father's proxy from a house my father and his sister grew up in, and she wants her proxy that's Willed to her. (No one can understand why he just didn't write a separate Will giving her his proxy to that particular house. He put everything in one Will; including bequeathing $1000 to each of my two sons, and my nephew, and we're all sure that my brother, who is the executor of this Will has exhausted all funds from my father's bank accounts). All my Aunt wants is the Will probated; she has nothing to do with the property that was Willed to me where my brother is living, or the $3000 that's supposed to be given to my two sons and my nephew ($1000 each). I know it sounds complicated, and exasperating, but it is what it is.

LisaB...I have written the attorney asking her if I can retain her to find out how the Deed was written; either joint tenancy, or tenants in common (50/50), and I'm waiting to hear back from her. I'm sure she has many other clients, is very busy, as well as getting this particular Will probated for my Aunt.
Thanks again for all the information.
gcc

[LisaB4657]

In response to your questions:

(1) Yes, if the property was transferred to your father and brother as joint tenants then your brother becomes the sole owner of your father's property upon his death. In such case the property never becomes part of his estate and the Will has no effect. However if the property was transferred as tenants in common then your brother continues to own 50% and your father's share becomes part of his estate and is transferred according to the Will.

(2) There is no need for you to retain the attorney separately. If she has already been retained as the attorney for the estate then she has a legal obligation to review the ownership of that property as soon as you advise her that a portion of that property may be part of the estate. It doesn't matter who retained her.

[ScottGem]

First, yes, if the will states Joint tenants or JTWROS then the property passed to him outside the estate. If it states Tenants in Common then your father's share of the property passed to his estate.

Second, a person generally writes ONE will with multiple bequests. Only one will is generally valid. So it would make no sense to have different wills for different bequests.

Third, you don't need an attorney to check the title of a property. You can go to the County clerk's office and review the deed yourself. However, making sure the title is correct may require an attorney or title search firm.

Fourth, the attorney represents your aunt. I believe it would still be a conflict of interest for her to represent you in any way. However, if you jointly retain her to force probate of the will that might be OK.

Fifth, Your brother should be removed as executor. An executor has a fiduciary responsibility to properly administer the estate. Not probating the will for more than 6 years is clearly not exercising that responsibility.

Sixth, you need to find out the circumstances of your brother being added to title of the property. As others have noted one does not get themselves "added" to a deed. Instead the current owner(s) have to execute a deed transferring ownership from themselves to new ownership (which can include themself). So if your father willed the property to you, he countermanded the will by transferring some part of the ownership to your brother. If he died in 2004 and the deed was executed on 2003, there is a possibility he was not competent to execute that deed.

[gcc]

Thank you LisaB. I will have to wait until I hear from the attorney regarding which way the Deed was written. I think she's going to wait until the Will goes through probate court until she acts on the (Deed) subject of joint tenants vs. tenants in common.
I just wonder how the situation of my father bequeathing my two sons $1000 each, as well as bequeathing my nephew $1000. Those were his grandsons, and he wanted to leave them something. My brother, being the executor of the Will, is supposed to give them each their $1000, right? It's in the Will. What happens if he doesn't, or doesn't have it to give to them?
gcc

[gcc]

Thank you ScottGem... the attorney and I have discussed my brother taking so long to get the Will probated, and I don't know why he never initiated the Will to be probated. The attorney did tell me that once the Will is probated, and if my brother takes too long to distribute what's in the Will to be given out that I will become executor. I don't know the time frame she's talking about. I guess I'll have to either contact her, or maybe she'll contact me. I don't know how things run up there in NY. I do know that my brother is to give my two sons, and my nephew $1000 each as stated in our Father's Will that he bequeathed to them. What happens if my brother doesn't do that, or, there is no money to give?
gcc

[ScottGem]

As executor, your brother is responsible for an accounting of the estate. To not fulfill specific bequests mentioned in the will, he would have to prove that there was no money left in the estate after paying all debts owed by your father and the expenses of the estate, which would come first. If he cannot prove this, he could be held personally responsible.

You have a real mess on your hands. It may be difficult to prove or disprove what was in the estate after 7 years.

[gcc]

Yes ScottGem... it will be a big mess. I have looked up the Tax Map information on the Deed, as well as the mortgage, and my brother has mortgaged our father's house at least 5 times in the last 7 years. He just mortgaged the house over and over again with different mortgage companies. The house has a whooping mortgage on it, and my parent's bought that house when I was 6 months old in 1954. So here we have a 57 year old house with a mortgage of well over $200,000, I'm sure. I have to ask myself, is that something I want to inherit? I live out of state. What would I do with a house that has a $200,000 mortgage on it? My youngest brother and I strongly believe that our other brother, who is the executor of the Will, has exhausted all funds from our father's bank accounts because my Aunt, who initiated the Will being probated, got a call from the attorney asking if there was any money in our father's bank accounts, and my Aunt told her she really didn't think so. So there goes my two son's $1000 each; as well as my nephew's $1000 that their grandfather left for them in his Will.

[AK lawyer]

...
You have a real mess on your hands. It may be difficult to prove or disprove what was in the estate after 7 years.

Actually, it's not all that complicated, at least from what I can piece together in this thread.

• The father wrote a will, by which he would have left an interest in the house to OP, and $1,000 to each of three grandsons.
  
• The father conveyed the property to himself and to his son, OP's brother, as joint tenants.
  
• The father then died.
  
• At this point, as a joint tenant, OP's brother became the sole owner of the house. Subsequently, he mortgaged the house to the hilt, which doesn't matter: it was his to do with as he pleased. Now keep in mind, it the house still belonged to the decedent's estate, the picture would be different. It, or part of it, could still be in the estate if:
  
  • it wasn't a joint tenancy, but a tenancy in common; or
  • the deed creating the joint tenancy was forged, executed while the father was not mentally competent, or was under undue influence.
  
  
• If the joint tenancy to the house was the only asset the father owned at the time of his death, his will would not be worth the paper it's printed on. There would be nothing in the estate to go to the devisees (OP and the grandsons). In that case, the brother was under no obligation to waste his time and money probating an "empty" will.

If, on the other hand, the deed creating the joint tenancy was somehow ineffective, the subsequent mortgages might be ineffective as well, and there might be equity in the estate. I don't think this is likely: most mortgage lenders are not that stupid: they would have investigated the title to the security before they invested. Or (if the brother mortgaged his interest before the father died) it could be, under the law in your state, that to do so converts the joint tenancy into a tenancy in common.

[ScottGem]

Actually, it's not all that complicated, at least from what I can piece together in this thread.

You're making a lot of assumptions here. The new info about the mortgages leads to the belief that fraud may exist. I find it unlikely that 5 lenders would underwrite mortgages on the same property if there was no fraud involved. On the other hand a house in NYS could easily be wroth more than $200K.

But the mess I was referring to is the estate accounting. In my opinion the brother has, at the least, left himself open for a lawsuit from the other heirs. At worst, there could be criminal charges.

There are just too many things we don't know.

[gcc]

I'm just going to wait until I hear that the Will has been probated by the court. (It's probably in probate court now, and I'm sure I won't hear anything for at least another month or so). Then I'll wait and see what the attorney, who was retained by my Aunt to get this Will probated, has to say about the Deed. All she's doing now is getting the Will to probate court, and the Deed situation of Joint Tenants, or Tenants in Common, will be a whole separate matter, I'm sure.
We'll also find out if there is $1000 to give to my two sons, and to my nephew, each, and if not, then what happened to that money? (My Aunt did call me recently saying the attorney called her and asked her if she knew if there was any money in any of my father's banks accounts, and my Aunt told the attorney she didn't think so. The attorney didn't call my brother to ask him about our father's bank accounts; and for whatever reason, I don't know why. Maybe she's finding something suspicious about him. I sure hope she does).
I'm sure we will find out if my brother has done anything unlawful when the Will is in probate court, or, when the Deed is investigated to find out how it is written. I really appreciate all your info, and the time you take to answer me.
gcc

[ScottGem]

Good luck and keep us posted.

[gcc]

Well I guess it's all said and done, so to speak. The attorney who was given my father's Will to send to probate court called me and said the Deed to the house (my Father's house that my brother and Mother live in now, and their names are both on the Deed), said any Deed/s prior to the one she found, dated 2006, with my brother and Mother's names on it, is invalid. (There were Deeds dated in 2003 and 2004 with my brother's name on them). The attorney said they go by the current Deed that's filed. The current Deed is written up as Tenancy In Common. So that leaves me out all the way. (My Father had Willed his house to me, but because my brother put his name on the Deed, I'm out.
Oh well. The attorney said it would take $625 to file the Will for probate, and I don't see any sense in paying anything when I'm not going to get anything.
GC