Q: My Brother and I previously acquired our family cabin for $1. No deed survivor clause, but how can my sons get it?
I want to ensure my 2 sons eventually acquire the cabin and acreage. Although I have a basic Will noting my sons are to receive my 1/2 ownership, can my Brother do the same to ensure his ownership doesn't go into probate to his wife and subsequently leave the original family, or is there something we can do together to have the deed re-written in a way that my sons will acquire it?
Could a Will written by my Brother be contested for his portion of the cabin's ownership based upon the deed with no survivorship? Due to the fact the cabin and acreage has become extremely valuable through natural gas wells, I'd like to ensure there are no battles after our passing.
A:
If your deed did not convey to the two of you as joint tenants with rights of survivorship, you each own half as tenants in common. That means that each of you can pass your respective interests by Will. However, in Pennsylvania, as in most other states, a spouse is protected by being entitled to a statutory forced share. If your brother does not have sufficient other assets to cover that forced share, his wife could elect to take against his Will. That means that she could have a court set aside any conveyance of his interest in the property to the extent of assuring that she receives her full forced share. This would occur even if he conveyed the property to you or did something with the deed well before his death.
You should both consult with knowledgeable estate planning counsel to try to address what you would like to do.
A: The first place to start is to review the current deed. If it does not contain "joint tenants with right of survivorship" language then you and your brother own the property as tenants in common, and you each can transfer or bequeath your 1/2 share in your separate Wills. Your brother's spouse (and yours if you are married as well) are protected in Pennsylvania by statute to receive a certain minimum portion of the estate. This does not guarantee the spouse a portion of each individual property or asset, but does require each asset to be valued and the spouse if guaranteed a percentage of the whole. Both you and your brother should meet with an experienced estate planning attorney to assist you this matter.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
