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COA affirms estate no longer has interest in property

March 23, 2016

The Indiana Court of Appeals affirmed a motion to dismiss as well as a motion for summary judgment after a woman sued an estate that no longer has interest in a property because that interest had passed to another person.

Cheryl Underwood sued the estate of Kenneth Kinney, Kinney’s wife, Judith Fulford, and Sheree Demming to sell and partition a property in Bloomington that she purchased with the husband and wife. Demming had previously sued Underwood and Kinney for $154,552.14 and won, getting a lien on the house.

Kinney died before Underwood sued for her share, and the trial court granted the estate’s motion to dismiss pursuant to Indiana Trial Rule 12(B)(6), saying the estate had no interest in the property because Fulford had received Kinney’s interest when Kinney died. Demming filed a motion for summary judgment saying she had a valid, enforceable lien against Underwood’s interest in the property. The trial court granted the motions and Underwood appealed.

The COA ruled Kinney and Fulford were tenants by the entireties instead of tenants in common, meaning that Fulford and Underwood owned the property 50-50. Also, it meant that instead of Kinney’s property going back to the estate after he died, it went straight to Fulford, his wife. Therefore, the estate had no interest in the suit Underwood filed.

Underwood said the phrase “tenants in common” in the warranty deed means the three were all tenants in common, but the COA said otherwise. The court said because Kinney and Fulford are husband and wife, it is presumed that they have joint tenancy, and therefore are tenants by entireties. The grantor of the deed referred to Kinney and Fulford as husband and wife, and had he wanted to create a tenancy in common, he would not have referred to them as such.

The case is Cheryl L. Underwood v. Thomas Bunger, in his capacity as the personal representative of the estate of Kenneth K. Kinney, Judith M. Fulford and Sheree Demming, 53A01-1509-MI-135.

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