Legal Question in Wills and Trusts in Georgia

My Mom and Dad had some cemetery lots, they were in both their names, my dad remarried, had 3 other children, he did not change the names of the lots, they are still in both their names, my Dad died 20 years ago, he was not buried there, he had no will and the graves were not included in his estate when he died, now my mom is getting old and the other 3 children are now saying they want to sell them because they are theirs too. My Mom says they are hers only since my Dad died and his other children have nothing to do with them. So my question is 1.) who is the legal owner of these lots? 2.) what does any child have any thing to do with them if my Mom is still living if they are hers? 3.) The cemetery says if she wants to do any thing with them as far as changing ownership she has to have the children sign-off on them giving permission, why? and what children? thank you State of Ga, Atlanta

Asked on 6/11/12, 10:25 am

2 Answers from Attorneys

Robert Thompson J. Robert Thompson Attorney

This depends on what you mean by "in both their names".

If it was just "mom and dad", this is a tenancy in common, and your dad's half passed to his new wife and all of his children inherited his half ownership.

If it was "mon and dad as joint tenants with right of survivorship", ownership passed to your mom at your dad's death, and they are hers alone.

This can only be determined by examining the original deed to the lots.

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Answered on 6/11/12, 11:37 am

I would have to see the deeds to the cemetary lots. You also indicate that your father remarried but that your mother is still alive. Are we to infer that your parents divorced? If so, when did that occur? When was the death? Was ownership of the cemetary lots discussed in any divorce settlement?

I am thinking that the lots may have been owned as a joint tenancy with right of survivorship (if this was in Georgia). Either way (as tenancy by the entireties or joint tenancy), the divorce would have destroyed this and your parents would have owned as tenants in common. What this means is that 1/2 the lots would pass as per your father's will or via intestacy and 1/2 would still belong to your mother.

Since you state that your father died, I assume that the lots would be inherited in part by the new wife and by any biological or adopted children of your father from both his marriages. That perhaps would explain why the cemetary wants the children to sign off on any transfer of ownership.

I think your mother is incorrect, but the only way to know would be to show the deeds and any probate information for your father to a probate attorney.

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Answered on 6/12/12, 6:59 pm

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