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Who Owns Grandma's House?

We are often confronted with questions concerning the status of property following the death of a family member. The questions are along the lines of: "Our Grandpa has died. He and Grandma have lived in the same house for the last fifty years. Now that Grandpa is dead, does Grandma own the house?"

The answer to that question, like the answer to almost all questions asked to an attorney, is contingent on the facts surrounding the situation. Consequently, without knowing anything further, the answer is the lawyer-like, but frustrating, "It depends."

In this case the principal factor that needs to be determined is how Grandpa and Grandma took title to the property in question. That fact is discovered by examining the deed which was executed and filed of record at the time Grandpa and Grandma bought the property.

Typically, the Grantee (the person coming into title) of the deed will be: (1) Grandma only; (2) Grandpa only; (3) Grandpa and Grandma as "tenants in common"; or (4) Grandpa and Grandma as "joint tenants with rights of survivorship." In both the tenants in common situation and the joint tenants with rights of survivorship situation, the ownership of each of the co-tenants, is the same, a one-half undivided interest in the property. The difference between the two is what happens when one of the co-tenants dies, which is discussed below.

If the Grantee of the deed in question is Grandma alone, then the death of Grandpa has no effect on her title; and she remains the sole owner of the property without anything further being required to be done.

If the Grantee of the deed in question is Grandpa alone, then Grandma has no present ownership interest in theproperty, and who inherits the property will depend on whether Grandpa died with or without a will. If he had a will, the property will pass to whomever was named in the will (in many cases, of course, it would be Grandma). If Grandpa died without a will, the property will pass to the parties identified in Oklahoma statutes as the parties to inherit, typically the surviving spouse and children, if any.

In either case, a court probate proceeding will be required.

If Grandpa died with a will, a probate proceeding is required to establish the fact of Grandpa’s death, to judicially determine that the will is a valid will under the laws of Oklahoma, and to judicially determine who is entitled to inherit under the terms of Grandpa’s will.

If Grandpa died without a will, the probate proceeding will establish the fact of Grandpa’s death and judicially determine who is entitled to inherit the property pursuant to the statutes of the State of Oklahoma.

In either event, Grandma has some protection in this situation. If the property was Grandpa’s homestead at the time he died, then, as his spouse, Grandma has the right to stay in the property for as long as she does not abandon it (leave the property without any intention of returning), regardless of who may have inherited the property either by will or pursuant to the statutes of the State of Oklahoma.

If the Grantee of the deed in question is Grandpa and Grandma as tenants in common, then Grandpa and Grandma each owned an undivided interest in the property and who inherits Grandpa’s half at his death will be determined, again, by whether Grandpa died with or without a will. This determination will, in the same manner as outlined above, require a probate proceeding, except that the determination will be only as to a one-half interest in the property, Grandma already owning the other one-half.

Finally, if the deed is to Grandpa and Grandma as joint tenants with rights of survivorship, then by the terms of the deed each owns an undivided one-half interest; and, at the death of either, the other becomes the owner of the full interest in the whole property. Therefore, by operation of law, at the death of Grandpa, Grandma becomes the sole owner of the property. In this situation, no probate proceeding is required. Grandma will have to execute an affidavit and have it filed in the land records of the county in which the property is located stating that Grandpa has died (and attaching a certified copy of his death certificate) and that they were joint tenants in the property as provided for in the deed under which they took title. The filing of this affidavit, without any further action being taken, will establish good title in Grandma.

Obviously, the least cumbersome way to deal with this situation is for Grandma and Grandpa to hold the title as joint tenants. While both are still living, if they do not hold their property in joint tenancy, assuming both parties are presently competent, it is a relatively simple matter to have a deed executed which would change their status of ownership, putting Grandpa and Grandma into that joint tenancy status.

Should you have any questions concerning the matters discussed herein or any other real estate related matters, please do not hesitate to contact a member of the staff of Oklahoma Title & Escrow Corporation.

John B. "Jack" Wimbish is a lawyer with Riddle&Wimbish, P.C. (www.riddlewimbish.com), the Tulsa law firm serving as General Counsel for OTEC. Jack concentrates primarily in the areas of Real Estate Acquisition, Development & Finance; Title Examination; Banking and Finance; and Oil & Gas. He also has experience in representation and documentation for local and national real estate partnerships, corporations, individuals and trusts in their acquisition and development of commercial real estate, including tax-deferred exchanges under §1031 of the Internal Revenue Code. He can be reached at jwimbish@riddlewimbish.com.