Our firm just encountered a sad situation with a parent trying to transfer property to a child. The parent owned a house in trust. She deeded the property to her son. The deed provided that the property was held by the mother, who was a widow, and the son, who was single, as Joint Tenants with Right of Survivorship. That form of holding property means that the surviving tenant gets title to the deceased tenant’s interest in the real property upon his/her death. Unfortunately, in this case, the son died. Upon review of the title to the real property, it was learned that the son had owed taxes and the taxing authorities had filed a tax lien against the property. Further, the son also had a judgment against him for an unpaid debt. The judgment was recorded and became a lien against the property.
This leaves the surviving tenant (the mother) with a lien against the property for tens of thousands of dollars. It is possible to sue for a declaratory judgment and make the claim that the son was held only as a constructive trustee until the mother died and try to have the court remove the liens. Sadly, this approach may or may not be successful depending on the evidence and will cost a great deal of money to put into effect.
The moral of the story is obvious: do not use joint tenancy as a means of avoiding probate. The obvious and better alternatives are either a Beneficiary Deed, a “Living” Trust, or simply leave the property by Will.
Jeffrey M. Neff is a real estate specialist certified by the Arizona Board of Legal Specialization. He has extensive experience in real property transactions and litigation including purchase, sale, lending, eliminating title problems, easements, quiet titles, partitions, foreclosure, workouts, real estate litigation and many other areas of commercial real estate.
