Q: The issue I'm dealing with is a probate case.

A: If your BF's father had a will, the will will control how the property in the estate will be distributed upon his death. It is unlikely but possible that your BF owns the entire house. If the deed provides for survivorship rights, your BF may own the entire home. Once your BF was added to the deed, only he or his authorized attorney in fact under a valid power of attorney can sign away his interest in the property.

You should contact an attorney to review the details of the deeds and the probate case. A clerk's comments in the recorder's office generally are not going to help you, and a judge may rule differently. You, as your BF's attorney in fact under the power of attorney, may want to challenge the niece's petition for a court order appointing her as Personal Representative. She does not have priority for the appointment unless the will nominates her as personal representative.

A: Someone is going to have to hire an attorney to represent them in the probate. Just because your boyfriend is in jail doesn't mean he can't be represented directly by an attorney in the probate proceeding. So help him find and hire an attorney. Your role is to facilitate this for your boyfriend, but he still can act as the client and give directions directly to the attorney that represents him.

There are two types of deeds that could have been signed with your boyfriend and you will need to show the deeds to an attorney to get a legal opinion as to what type of deed was used.

Type one is a standard deed that gifts part, probably 1/2 of the property to your boyfriend with a right of survivorship. If that is the type of deed that was used, your boyfriend may still own 1/2 of the property. The second deed to the grandaughter would have only given the part of the property that the father owned, to the granddaughter - which would be 1/2. This is because your boyfriend then owned 1/2 and he didn't sign a new deed giving his 1/2 to the grandaughter.

The other type of deed is a transfer on death deed. In this second situation your boyfriend never owned any property. So the new deed may have revoked the first transfer on death deed and created a new situation with the granddaughter, depending on what type of deed was used.

Whether the second deed was recorded or not doesn't matter with respect to whether it was a valid deed. The only requirement for the second deed to be valid is that it is signed and delivered to the granddaughter, before he died.

Now there may be a way to challenge the legality of the second deed if you can prove that the granddaughter exercised undue influence over the grandfather when he was weak, sick, not thinking clearly, etc. This would mean that he didn't really do what he would have done under normal circumstances but acted under duress and manipulation. If this is the case the second deed may be declared invalid. But be aware that proving undue influence is difficult and expensive.

Another issue is if one or more deeds legally transfer the property there is nothing to be probated with respect to the property. You don't probate real estate that becomes owned by someone else where a deed grants a right of survivorship. However the court could be involved in a real estate dispute, typically called a quiet title action, to determine the legal ownership of the real estate and settle any issues with the deed or deeds.

A: Just to be clear - a Will does not change what a deed says. So if a deed leaves real estate to someone by right of survivorship, a Will that states who gets the decedent's property has no legal effect on the real estate that transferred by right of survivorship per the deed language. What can happen is that the court can invalidate the deed, so there is no transfer by right of survivorship per the deed, then the real estate becomes property that the probate court has to deal with either by following what the Will said or by following intestacy statutes which determine inheritance rights when there is no Will.