Dear Ms. Allison: In his Will, my dad left me his house and his half of the lake house he bought with his brother. Everyone has heard him talk about this for years before he died. Turns out though, my uncle got 100% of the lake house before probate even started. What’s going on here? B.T., in Wagoner

Dear B.T.,

Some estate property is subject to probate and some is not. Lots of people think a Will controls what happens to all of our stuff when we die. In reality, your Will only controls assets that are in your name alone on the deed or title. A Will is handled in Probate Court. Verbal instructions control nothing. So, when it comes to real estate, your deed determines how things happen.

When you buy real estate, you get a deed or title to it. That deed lists the new owner(s). It also says how the property is held — whether just one person owns it, or if there are co-owners, what parts each owns, and under what conditions.

For instance, from the little bit of information you gave, I suspect that your dad and his brother bought the lake property together and had the deed titled as Joint Tenants with Rights of Survivorship. This joint tenancy made them owners with equal shares while alive. Regardless of what your dad and uncle thought would happen, the Right of Survivorship meant that when one of them died, the survivor owns the entire property. As the surviving owner, all your uncle had to do was provide a death certificate and an affidavit, and the title /deed would be changed to his name only. There is nothing sneaky about it. It’s how that kind of title/deed works.

Have you discussed this with your probate lawyer and your uncle? Since it was a clear wish of your dad’s for you to inherit his half of the lake house, perhaps you could strike a deal with your uncle that would preserve relationships and good will. But, remember, unless you have some sort of proof that the deed is in error, legally your uncle doesn’t have to share, because the deed controls this outcome.

Your estate dispute is not with your uncle, but you may have an action against the lawyer who drafted the Will if you can prove he knew your father’s wishes and did not use methods that could make them happen. That lawyer should have looked at the deed and properly advised your father of who would inherit. He should have known that the Will would not control the situation and, on hearing your father’s wishes, should have informed him this method would not make that happen. Other forms of title/deed would send his half to Probate, but not Joint Tenancy.

This is an example of a very common estate planning mistake. Many people, including lawyers with inadequate skills, think that you can just describe something in a Will or Trust and that will cause it to be given out in the manner described. However, the truth is that the way property of all types pass at a person’s death depends first on the title to the property. Wills do not control property that is not titled to the decedent’s name alone unless the titling document gives further direction.

You can make sure something like this doesn’t happen in your future. Get an experienced Oklahoma estate and probate lawyer whose practice focuses entirely on estate issues. Ask her to explain your estate planning options, and how they play out when you die. Finally, regularly update your own estate plan to be sure there are no surprises when you do eventually pass away.

That’s your question, Asked and Answered, My best to you,
Gale Allison