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Home / Estate Planning / If Real Property is Held by a Deceased Spouse and his Parent, how does the Surviving Spouse get Title to the Home?

If Real Property is Held by a Deceased Spouse and his Parent, how does the Surviving Spouse get Title to the Home?

Estate Planning, Trust and Estate Administration

I was recently asked to address a situation where Husband died and the home was held in joint tenancy between Husband and his mother.  Husband had no will.  The question was presented how does the surviving Wife get title to the home?

Assuming Mother has predeceased Husband, upon her death legal title would have passed by right of survivorship to Husband.  To remove Mother’s name from the title, an Affidavit of Death of Joint Tenant would have to be prepared and a certified copy of Mother’s death certificate attached, both of which would then have to be recorded.  This package would have to be accompanied by a Preliminary Change of Ownership Report and a BOE 58, claim of the parent child transfer exemption.  Once those documents are recorded, the real property would be solely in the name of Husband.  Since title would be in Husband’s name alone, it would be his sole and separate property (subject to the caveat below pertaining to a claim of a community property interest by Wife).  If the Husband did not leave a will at the time of his death, the real property would have to be probated (subject to a caveat below pertaining to real property having a value of less than $50,000) and would pass by the laws of intestate succession among the surviving Wife and surviving children of Husband.

The caveats are that if the debt service has been paid using community property income earned during the marriage, Wife is likely to have some claim against the home, even if it is held solely in the name of Husband.  The second caveat relates to the fact that California law was recently amended effective January 1, 2012 and will be applied retroactively, so that if the property has a value of less than $50,000, it will not have to be probated (just wait until 1/1/2012 to do the paperwork).

On the other hand, assuming Mother is still alive, title to the home passed to her upon Husband’s death (she would clear title as described above).  It is arguable that Wife might have some claim for community property used to pay the debt service, but that wouldn’t be as strong an argument as the debt service was paid in lieu of paying rent.  In this example, Mother could transfer the home to Wife after clearing title as described above.

Litherland, Kennedy & Associates, APC, Attorneys at Law
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