Real Property Rights Protection

When real property is owned by multiple family members, often across multiple generations, creating a “fractional” interest held by each family member.

“Fractional” interest means that each family member owns an undivided portion of the subject real property and all family members with a fractionated interest have an equal right to use and possess the property.

This can happen when a property is passed down without a will or other legal documents determining how the property should be transferred.

Here is an example of why Heirs Property can create issues:

John Smith inherits a property with six other relatives. John currently lives at the property once owned by his mother. Upon her death, John and the remaining heirs inherit the property as tenants in common. John’s brother James wants to sell the property now that their mother no longer needs the property. He convinces the other heirs to agree to sell the property but John (who still lives at the property) refuses to agree to the sale. What happens to this property?

Answer: A number of complex legal remedies may be available to John and his relatives. John contacts CLS for additional legal advice on how to proceed!

Tenant in Common means that each heir owns an interest in the undivided real property. In other words, rather than each heir owning their own individual lot, they all own the whole property together. No priority or hierarchy exists among tenants in common (sometimes referred to as co-tenants), even if one is living on the property while the others do not. Unless specifically stated otherwise, most heirs with take an interest in the property as tenants in common.

Joint Tenants with Rights of Survivorship differs from tenants in common because it allows the interest held by the Joint Tenants to pass automatically to the surviving tenants. For example, Sally, Sue, and Sandy own their property as Joint Tenants with Rights of Survivorship (sometimes referred to as JTWROS) but Sally passes away suddenly. Based on the Joint Tenants with Rights of Survivorship designation, Sue and Sandy take over Sally’s interest in the property with no further action. This type of title is only available if specifically stated in the document granting ownership to the real property.

Tenants by the Entireties is a type of ownership that is only available to married couples. This type of ownership interest includes additional protections under the Florida Constitution and can be created simply by transferring ownership to couple as married people.

If you believe your property is impacted by Heirs Property issues, it can be fixed! In order to prepare to resolve Heirs Property issues start by gathering the following information:

1. Gather the names and contact information for all living family members that may have an interest in the subject real property.
2. Create a family tree! Get your family together to talk about the family tree and what should happen to the subject real property.
3. Create a maintenance plan for the subject property, including estate plans for family members who have an interest in the property.
4. Contact CLS to help you determine how to address the identified Heirs Property issues. Contact us today!

Heirs Property issues can be resolved in a number of ways, including:

Probate is a court supervised legal proceeding that identifies and gathers assets of a deceased party (decedent) in order to distribute those assets to beneficiaries and pay creditors of the decedent. Probate is governed by Florida Probate Code and often results in beneficiaries taking interest in decedent’s property as tenants in common.

Partition is the legal division property owned among co-owners, so that each person receives a distinct portion of the property or its value. This can be done voluntarily by agreement or through a court order. Partition of Heirs Property is generally governed by the Uniform Partition of Heirs’ Property Act.

CLS can help you determine what options are available and what makes the most sense for you and your family to resolve Heirs Property issues. Contact us today!

Estate Planning

Create a Will or Trust now! To avoid Heirs Property and the associated issues, determine how you want your property to transfer before it is too late. This can include creating a Will with your specific instruction on how your estate (including your real property) should transfer upon your death.

A Trust is a legal agreement that directs the appointed Trustee to manage the deposited assets for your benefit during your lifetime, and then to distribute your assets to the specific people you name as the beneficiaries after your death. You will continue to benefit from the assets during your lifetime.

It is important to make sure that whether you create a Will or Trust that you keep those documents in a safe place so that they can be accessed when needed. If these documents are lost, this can create Heirs Property issues.

Lady Bird Deeds (also known as Enhanced Life Estate Deeds) is a special type of deed used to transfer property while retaining control and benefits during the grantor’s lifetime.

The Lady Bird Deed is useful because it allows the grantor to transfer property to grantee(s) immediately upon grantor’s death without losing control or risking during the grantor’s lifetime.

CLS can help you determine which of these options makes the most sense for you and your family to avoid the future headache of Heirs Property issues. Contact us today!