Is the condominium that she left right of survivorship to brother included as part of his 1/3 share? 31 Answers as of June 25, 2014

I understand what right of survivorship means but in my mom’s will, she left her three children equal 1/3 of her estate.

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O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, unless the will or other applicable document states something differently, what someone passes through one's will is separate from what someone passes by operation of law in holding title to property with rights of survivorship. Without seeing the applicable will and deed, it sounds like your brother's interest in the condo is not included as part of your brother's 1/3 share from the will.
Answer Applies to: Maryland
Replied: 6/25/2014
Estrada Law P.C. | Michele Ungvarsky
The deed to the condo would prevail over the will. So her brother would get the condo, the children would be entitled to 1/3 of the remainder of the estate.
Answer Applies to: New Mexico
Replied: 6/3/2014
Durham Jones & Pinegar | Erven Nelson
We would need to review the will to be sure, but probably the condo passed to your brother at your mother's death, meaning that it is not part of the estate.
Answer Applies to: Nevada
Replied: 6/2/2014
Stephens Gourley & Bywater | David A. Stephens
Probably not, but you would have to read the will carefully to know for sure.
Answer Applies to: Nevada
Replied: 6/2/2014
Zitzmann Law, LLC
Zitzmann Law, LLC | James Zitzmann
Louisiana does not have right of survivorship for co-owned things, so the estate will devolve as specified in the will; 1/3 to each child.
Answer Applies to: Louisiana
Replied: 6/2/2014
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    No, if your brother was on title with your mom as joint tenants with right of survivorship, your brother becomes the sole owner of that parcel of real property.
    Answer Applies to: California
    Replied: 6/2/2014
    Frederick & Frederick PLC | James P Frederick
    Property that is owned jointly with rights of survivorship does not pass under a Will and is not included as part of the estate. The last person standing with survivorship property is the owner.
    Answer Applies to: Michigan
    Replied: 6/2/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    The answer will depend on the language in your mother's will. Assuming that your brother was specifically bequeathed the right of survivorship and that the last bequest in the will is that the remainder of Mom's estate is to be divided equally equally between her three children, your brother would inherit both the life estate in the property and 1/3 of whatever is left of the estate after all bills and taxes are paid and all specifically-named bequests are distributed.
    Answer Applies to: Nebraska
    Replied: 6/2/2014
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    If the condo is in joint tenancy, it goes to the surviving joint tenant, outside the will.
    Answer Applies to: California
    Replied: 6/2/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    No. Assets that are held in joint tenancy are not included in calculation of the amount of the probate estate or what they are entitled to receive.
    Answer Applies to: Nevada
    Replied: 6/2/2014
    Kirby G. Moss PC | Kirby G. Moss
    If the will says one third to each and the deed to the condo says right of survivorship to the brother, then the condo goes outside the will and what goes per the will is divided 3 ways equally among'st the children.
    Answer Applies to: Indiana
    Replied: 6/2/2014
    S. Joseph Schramm | Joseph Schramm
    The estate will contain all the property that was in your mother's name alone at the time of her passing. Not included would be property she held jointly with someone with the right of survivorship. That property goes automatically by operation of law to the surviving joint owner, in this case, your brother and does not count as being part of his share unless your mother stated in her will that his 1/3 share was to be offset by the value of the property he received as the surviving joint tenant.
    Answer Applies to: Pennsylvania
    Replied: 6/2/2014
    Busson & Sikorski, PC | Robert S. Sikorski
    The answer to that quest will depend on how the Will was drafted, but I surmise the gist of your comment, then it seems that the survivorship is a part of title to the house and therefore would not be a part of the Will's residuary estate. As the 1\3 is a residuary provision, at death the house would not be a part of the estate as your brother's interest in the house existed before your mother's death, so your brother's interest in the house would not be included in the 1\3rd of the residuary. This opinion is without the benefit of review the Will and the deed to the house. To give a more exact opinion, I would have to review both of those documents in depth, so this opinion cannot be consider as a final and firm opinion without such an in depth review.
    Answer Applies to: New York
    Replied: 6/2/2014
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    The condominium would not be part of the probate estate under the facts you pose. This asset would not count toward the computation of one-third (1/3) of the probate estate.
    Answer Applies to: Minnesota
    Replied: 6/2/2014
    Danville Law Group | Scott Jordan
    No. If the condo was in both their names with right of survivorship, the survivor automatically becomes the sole owner of the property. Her 1/2 is not part of her estate.
    Answer Applies to: California
    Replied: 6/2/2014
    Law Office of Pamela Braynon | Pamela Y. Braynon
    Brothers therefore not a part of your mother's estate.
    Answer Applies to: Florida
    Replied: 6/2/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Property passing by right of survivorship is not affected by the will. So, no; brother gets the condo, and then he gets 1/3 of mother's probate estate. Unless one of you can prove (not "mom said," but actual documentary proof) that she intended the condo to be part of his 1/3 share. It would be a very difficult case to make.
    Answer Applies to: Oregon
    Replied: 6/2/2014
    James Law Group
    James Law Group | Christine James
    The condo is not part of her estate if in joint tenancy. The brother takes 100% of the condo.
    Answer Applies to: California
    Replied: 6/2/2014
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    The condo is over and above the 1/3 share, and therefore not included in the 1/3 share.
    Answer Applies to: California
    Replied: 6/2/2014
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    If the condominium was title as joint tenants with right of survivorship, then at her death the property would pass to the brother. That being the case, it is not part of her estate, so it is not something which would be subject to being divided in thirds.
    Answer Applies to: California
    Replied: 6/2/2014
    Darrell B. Reynolds, P.C. | Darrell B. Reynolds
    You need to take the will to an attorney so that it can be reviewed and the attorney can see the entire picture.
    Answer Applies to: Georgia
    Replied: 6/2/2014
    Gates' Law, PLLC | Thomas E. Gates
    There are two elements that are in play. First, the condominium. It would appear that your mother previously transferred an interest to your brother. Second, if this is the case, the 1/3 is not considered as 1/3 of her estate.
    Answer Applies to: Washington
    Replied: 6/2/2014
    C Page Hamrick Attorney at Law | C Page Hamrick
    FOR WEST VIRGINIA ONLY: I assume you mean that the title to the condominium was in the name of your late mother and one of the children as joint tenants with right of survivorship, and that your mother also left a will giving all three children 1/3 each of her probate estate. If that is the case, then the condo was not probate property in the estate and went "outside" the will directly to the child who had right of survivorship. The rest of the net estate would be divided three ways.
    Answer Applies to: West Virginia
    Replied: 6/2/2014
    Patrick W. Currin, Attorney at Law | Patrick Currin
    A joint tenancy creates an automatic 100% fee simple in the surviving joint tenant on the death of the other. If the will doesn't specifically mention the condo as part of the estate, it would be difficult to assert such a right. If there is a conflict between the express terms of the will and the fact a joint tenancy was created, then you have a case, although not a slam dunk. The court will try and figure out the intent of the grantor. When the joint tenancy was created in relation to the will would be a key factor.
    Answer Applies to: California
    Replied: 6/2/2014
    Vandervoort, Christ & Fisher, P.C. | James E. Reed
    Cannot answer the question with any specificity because we would need to review the Will, but, generally, the condominium would not be part of the brother's 1/3 share. It would be inaddition to the 1/3 share.
    Answer Applies to: Michigan
    Replied: 6/2/2014
    Joseph E. Blandford, Jr., Attorney at Law | Joseph E. Blandford, Jr.
    When real property, ie., land, or any ownership recorded by deed such as this condominium, is held as Joint Tenants with Right of Survivorship, that means it passes outside your mother's estate and goes directly to the co-owner who lives longest and the will has no affect on the transfer of the condo. If I understand your questions correctly, your mother owned a condominium as co-owner with her brother in Joint Tenancy with Right of Survivorship and her deed left you and your two siblings as equal beneficiaries to her estate. Therefore, the condo goes to your uncle and whatever is in the estate is split between your mother's heirs in 1/3 portions.
    Answer Applies to: Kentucky
    Replied: 6/2/2014
    Robert E. Giffin | Robert E. Giffin CPA
    Usually not as condo is controlled by language in the deed and is not part of her probate estate, or condo is not property passing under her will.
    Answer Applies to: Ohio
    Replied: 6/2/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    At law, the interest in the condominium past outside of your mother's estate and therefore would not be accounted for or have to be equalized. Brother therefore gets the condominium and one third of what over probate estate was left by her mother.
    Answer Applies to: Michigan
    Replied: 6/2/2014
    Ben T. Liu Law Office
    Ben T. Liu Law Office | Ben T. Liu
    Probably not, unless there is expressed language in the will to include the condo.
    Answer Applies to: Michigan
    Replied: 6/2/2014
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    If she and your brother held the condo as joint tenants with right of survivorship, then it b elongs to himj and is not part of the estate. He rest of the estate gets divided in 3.
    Answer Applies to: California
    Replied: 6/2/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    The Will controls the distribution of the assets in the estate of the deceased. Real property owned in joint tenancy with rights of survivorship pass to the surviving joint tenant outside of the estate. The only way the real property would be included in the 1/3 distribution from the estate is if there was a reference in the Will that prior gifts be considered an advancement against a distributive share. This reference should be specific.
    Answer Applies to: Illinois
    Replied: 6/2/2014
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