By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Litigation Attorney

Recently a client’s dad died. The family found the deed to the house. The deed lists dad and his son (client’s brother) as tenants in common. But the father’s will says the daughter gets the house. The brother was living with the father and is still living there. The sister wants him to leave. She’s dad’s personal representative (Executrix under Dad’s Last Will and Testament). What happens now?

Because the brother is listed on the deed as a tenant in common with the father, the brother effectively owns half (50%) of the house. The ownership interest continues despite the dad’s death. The other half of the house that was owned by the father is part of the father’s probate estate. Once the father’s estate passes through probate, the remaining one-half-ownership of the house will pass to the daughter. Each owns 50% of the house.

The conflict between the deed and the will is unfortunate and obviously presents a problem for both daughter and brother. Among her options: She could offer to buy her brother’s half-interest in the house. Or, he could buy her half-interest. Another possibility: She could sell the house by mutual agreement, or if he won’t agree, she could file a lawsuit forcing the sale of the house and an equal division of the net proceeds. That type of lawsuit is called a “partition action.”

To discuss your NJ Estate Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.