Dear Ask Dennis:
I own a house as the result of being the sole surviving joint tenant. One of my brothers is threatening to put the property into probate (our parents were the other joint tenants, they are both deceased.) what would happen to him if he tried that?
Dear J. C.:
That is a very interesting question. Unfortunately, in order to answer it I need to ask you some questions. What was the mental condition of your father or mother at the time the joint tenancy deed was created? Did one or both of your parents have a diagnosis of Alzheimer’s Disease or dementia? Were you a caregiver to one or both of your parents at the time the joint tenant deed was signed? Did you take your parent to the attorney’s office to have the joint tenant deed prepared? Did you prepare the deed yourself? All these questions and more would affect how I answer your question.
In California. a deed is presumed to be valid. It is ordinarily the burden of the challenging party to prove that the person who signed the deed lacked mental capacity or was subject to undue influence.
However, if you arranged for the deed to be done or if you took your parent to the lawyer to have the deed prepared, it is possible the burden proof of proving incapacity or capacity could shift. If you were providing caregiver services at the time the deed was done, that is another reason that the burden of proving your parents understood what they were doing could shift to you. You may also be required to prove they were not subject to undue influence.
So the good news is that the joint tenant deed is presumed valid but the bad news is that your brother could challenge its validity. He would then have the initial burden of proving that your parents lacked capacity at the time of execution or were subject to undue influence. If he submitted enough evidence, the burden could then shift to you to prove that they had capacity or were not subject to undue influence. If he never challenges the validity of the deed in court, you are fine.
If you would like to schedule an appointment to discuss further the likelihood that the deed you have will stand up to the scrutiny of the court, you can schedule a telephone or in person consultation at our Riverside office with one of our estate planning lawyers. The cost for the initial consultation is a special discounted rate of $250. The $250 would be credited to any work that has to be done if you decide to hire us to assist you with this matter in some way. Our office number is 951-787-7711.
You can learn more about elder financial abuse litigation and challenging a Will, trust or joint tenancy deed here.
Dennis M. Sandoval is an estate planning attorney and elder lawyer in Riverside. His office assists persons with estate planning, trusts, conservatorships, probate, special needs trusts, and probate litigation.