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Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

I would like some advice. My friend and I bought a home 24 years ago. We are listed as half owners on the Deed of Trust.

Last October, my friend passed away. We never had the home listed as joint tenants on the deed.

Am I going to have a problem having the title changed into my name only? My friend didn’t have a will or any children.

Cathy

Dear Cathy,

First of all, don’t assume the home was not in joint tenancy. In your email, you referred to the Deed of Trust.

This isn’t the deed to your home.

Instead, a Deed of Trust is your mortgage lender’s recorded lien on your home that lets them sell the home in a foreclosure if you default on your payments.

The deed you need to examine should be a “Grant Deed,” or sometimes a “Corporation Grant Deed” or “Individual Grant Deed.”

If you do not have this document, you can obtain a copy from your local County Recorder for a small fee.

Do not bother paying for a certified copy.

You’ll never need one.

Just get a copy.

If the deed says, “Cathy and Friend, as Joint Tenants” or “Cathy and Friend, as Joint Tenants with Right of Survivorship” then it’s easy.

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All you need to do is to record your friend’s certificate of death with an Affidavit of Death of Joint Tenant.

The property won’t even be reassessed under Proposition 13.

Because there’s a transfer exemption for transfers on death between cohabitants (there’s an extra property tax form for this).

If the deed is not a Joint Tenancy deed, then you have serious problems.

Your friend’s half belongs to his or her probate estate.

Since your friend died without a will, the estate passes by “intestate succession.

The bad news is that friends and cohabitants don’t inherit under intestate succession.

The estate’s half of the home will be inherited by members of your friend’s family.

Perhaps even distant relatives.

If this is the case, then your best bet may be to lie low and hope that nobody notices you’re not on the title to the entire property.

You will have to deal with this if you ever try to sell or borrow against the property, but you don’t have a duty to deal with the situation now anymore.

What you really ought to do is to review the deed to the home with a trusts and estates attorney.

Here’s the lesson for the rest of our readers: You need an estate plan, even if it’s a simple will.

Because if you don’t you may leave a giant mess behind that your loved ones may not be able to clean up.

Len and Rosie

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Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.

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