In Matters of Title, There Are No Minor Details

Q: My mother died a couple of months ago, and my dad wants to make sure that title to his house is in his name. How do we determine the status of title? Dad wants to make sure that upon his death, his three children will not have any problems regarding the house.

A: First, a reminder: While I am sure that your motives are pure and you are trying to be helpful, remember that the decision on how to distribute your dad's assets when he dies is his and his alone to make.

The answer to your question depends on how your parents held title. You can ask a lawyer to do a title search, or you may be able to go to the Web site of the recorder of deeds in the county or city where the property is located and get a copy of the deed.

There are several ways property can be owned.

Sole owner: One person owns the property in his own name.

Tenants in common: Two or more people own the property together, and each owner has a divisible interest in the property. Although most tenant-in-common ownerships are split 50-50, there is no legal requirement that it has to be this way. Often there are financial or other considerations that dictate a different split. For example, parents may buy a house with their children and split up ownership in accordance with a formula upon which they all agree.

On the death of one owner, his percentage ownership is part of his estate. The estate must be probated. The property interest does not transfer to the surviving owner.

If the decedent has a will, his portion of the property will be distributed in accordance with its instructions. If the person dies without a will, or intestate, the laws of the jurisdiction where he was domiciled will control the distribution.

Joint tenants: The parties jointly own the property. Although some states require language to the effect that the property is held as joint tenants "with right of survivorship," most states will consider the property as being jointly held even if this language is not in the deed.

Under joint tenancy, on the death of one owner, the property will automatically be transferred to the surviving joint tenant. Probate is not necessary. This is called a transfer "by operation of law."

Let's look at this example: A and B own property as joint tenants with right of survivorship. A dies with a will that specifically gives A's share of the property to C, his child.

However, because the property is jointly held, B will still end up with full ownership. C has no claim to the property, and the will, as it relates to the property, is meaningless.