Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

My mother died three years ago. My father is still alive. We are trying to upgrade the house.

My father granted me the right to the property, but when I tried to apply for a loan, the title company told me that my mother still owns one-third of the property.

The title company suggested that we have to do a probate since my mother died without a will.

Is it necessary to do probate, since my father is still alive?

What will be the easiest and inexpensive way of clearing title?

Jose

Dear Jose,

You are in a fairly unusual situation.

Most married couples buying property together purchase their homes in both spouses’ names as joint tenants. When parents add their children to the title of their home, they usually title the property in joint tenancy.

Joint tenancy is cheap and easy to deal with—all you would need to do to remove your mother’s name from the title to the home would be to sign and record an Affidavit of Death of Joint Tenant with a certified copy of your mother’s death certificate attached.

Since we do not have a copy of the deed to your parents’ home to review, it’s probably save to guess that the property was either titled in your parents’ names as community property, or maybe as a tenancy in common.

Either way, your mother’s interest in the home belongs to her probate estate and is subject to probate.

A full probate shouldn’t be necessary.

It’s almost certain that your parents’ home was their community property, as it was likely purchased with money they earned during their marriage.

Since your mother died without a will, her husband shall inherit all of the community property by “intestate succession”, the law that says who gets what when someone dies without a will.

Instead of filing for probate, your father can hire a lawyer and file a Spousal Property Petition.

Unless someone objects claiming that the home really wasn’t community property, the judge will grant the petition and issue an order transferring your mother’s interest in the home to your father.

A Spousal Property Petition is much quicker, cheaper and easier than filing for probate. Your father can get a court order within a month of walking into the lawyer’s office, and even faster than that if necessary.

Once you record the court’s order, you and your father will have the clear title necessary for the title company to close escrow on your loan.

After that, your father should review his own estate plan, if only so you may avoid the problems you are dealing with now a second time after your father passes away.

He should either hold title with you as joint tenants, or he could create a revocable trust.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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