ILNews

Property conveyed by the entirety includes presumption of right of survivorship

Back to TopCommentsE-mailPrintBookmark and Share

In a question of first impression, the Indiana Court of Appeals Thursday held that when a property is conveyed by the entirety, there is a presumption the grantor intended to convey the property with the right of survivorship. It does not matter if the individuals are not husband and wife.

Lawrence H. Powell conveyed real estate to his sons Kevin and Gary Powell by means of a warranty deed. It was conveyed to them as “tenants by the entireties.” Gary Powell died in March 2013, and his estate sought a ruling that the title to the real estate was held by the brothers as tenants in common. Kevin Powell counterclaimed, arguing that the deed created a joint tenancy with right of survivorship, meaning he is now the sole owner after his brother’s death.

The trial court ruled in favor of the estate.

Tenancy by the entirety can only exist between a husband and wife under the law, so Lawrence Powell couldn’t convey the land to his sons utilizing this ownership form. The question as to the legal effect of a conveyance of real estate by the entirety to two or more individuals who are not husband and wife is one of first impression in Indiana.

“The Estate’s argument begs the question; the argument’s conclusion is among its premises. That is, the Estate urges us to conclude that Lawrence intended to convey the land to his sons as tenants in common based in large part upon the presumption that such is what he intended to state in the deed when he in fact wrote something entirely different. The Estate compounds the logical fallacy in contending that we should not attempt to ferret out Lawrence’s intent, but instead focus only upon the language used in the deed – while at the same time urging us to disregard what Lawrence actually stated in the deed in favor of the presumption that he intended to state something else. This argument leaves us a bit perplexed, and unconvinced.”

The question in this case is whether the deed’s designation of Kevin and Gary Powell as “tenants by the entireties” manifests an intent to create an estate in joint tenancy. The judges believed that in specifying that Kevin and Gary Powell would take the property as “tenants by the entireties,” Lawrence Powell meant to convey the right of survivorship. The judges then cited cases from other states that have reached a similar conclusion.

“When a property is conveyed to individuals by the entirety or entireties, regardless of whether those individuals are husband and wife, a presumption arises that the grantor intended to convey the property with the right of survivorship,” Judge Ezra Friedlander wrote. “This, in turn, is sufficient to establish the intent to create an estate in joint tenancy with right of survivorship within the meaning of I.C. 32-17-2-1(c)(2).”

The judges remanded with instructions to grant Powell’s motion for summary judgment. The case is G. Kevin Powell v. Estate of Gary Powell, 02A05-1311-CR-584.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  2. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  3. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  4. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  5. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

ADVERTISEMENT