In the recent Texas case of In Re Estate of Tillotson, the administrator of a deceased individual’s estate filed a motion to have the deceased individual’s husband turn over the deceased individual’s community property interest in several accounts. When the trial court granted the motion, the surviving spouse appealed.
The court of appeals found that the administrator had the power to file a motion seeking partition of community property. The appeals court noted that the state’s estate code provides that an executor or administrator through a written application can request the partition and distribution of an estate. The court also noted that if an intestate deceased spouse survives a child, the deceased spouse’s undivided one-half interest in the community estate passes to the deceased spouse’s children.
The appeals court went on to discuss the Texas estate code that permits a surviving spouse to seek a partition but noted that this code does not make this right exclusive to the surviving spouse. Consequently, the court of appeals affirmed the trial court’s order.
The Role of Tenancy-in-Common Due to Intestate Laws
A tenancy in common is a particularly common form of property ownership in the United States. Property owners referred to as tenants-in-common, each own a portion of an undivided parcel of real estate. One reason this type of property ownership is so common is that if an individual passes away without a will or document describing how property should be handled, that individual is said to die intestate and their assets are passed under an established series of “intestate” laws. Oftentimes this means that if a person dies intestate, any real estate the deceased individual owns is passed onto heirs who become tenants-in-common.
How New York State Handles Partitioning Property
New York state addresses the partitioning of property in its Uniform Partition of Heirs Property Act. This act was created to protect property owners who recently inherited real estate from an estate. The Act requires a settlement conference before any heir’s property can be partitioned. The Act also requires that parties to these conferences behave in good faith.
The Act defines real property held in tenancy-in-common as property that at the time that a partition is filed is subject to no agreement governing how the property is partitioned and any of the co-tenants received title to the real estate from a relative. Additionally, either 20% or more of the interests must be held by co-tenants who are relatives, 20% or more of the interests must be held by an individual who acquired title from a relative, 20% or more of the co-tenants must be relatives of one another, or any co-tenant who received title from a relative must reside on the property. Ultimately, it’s up to a court of law to make an assessment about whether a property satisfies these conditions.
Contact an Experienced Estate Planning Attorney Today
If your loved one has questions or concerns about the estate planning process, you should not hesitate to speak with a compassionate lawyer. Contact Ettinger Law Firm today to schedule a free case evaluation.