What is the easiest and inexpensive way of clearing title after one parent dies and leaves the other behind with no estate plan.

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 1/3 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? and 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 propertytogether 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

Younger sister died leaving behind teenage son and no estate planning, now what?

Dear Len & Rosie,

My younger sister died without a will. She almost no money. Sadly enough, she also left a 16-year -old son. She did have some life insurance of which I am the beneficiary, but she left two paychecks as well.

I will set up an account to pay for her son’s care, but in order to cash the paychecks, I need to be named Administrator of my sister’s estate. How can I do this myself so I can save money for her son? Everyone at the bank says I can easily be named as Administrator, but what do I need to do? Her son is such a good kid and wonderful student. If I can do this myself instead of spending money on a lawyer, I would be so grateful.

Moira

Dear Moira,

Administrator is just another word for executor. The only difference is that executors are named in wills, and administrators are appointed directly by the court. The duties and authority of administrators are exactly the same as those for executors.

The bank is telling you that you need to go to court, file a petition for probate, and get appointed as administrator of your sister’s probate estate before you can cash her old paychecks. This is incorrect. Because your sister’s estate is worth so little, you can take a legal shortcut. If your sister died as a resident of California and her estate is worth less than $150,000, then her heirs can skip probate and collect her assets with a small estate declaration under California Probate Code section 131001. Many banks know about this and even have their own small estate forms.

There are several twists you should know about. First, you have to wait until 40 days after your sister’s death to be able to sign the 13101 declaration, and you will also have to give the bank a certified copy of your sister’s death certificate. Also, you will become personally responsible for your sister’s debts, up to the amount of money you collect using the declaration.

But you can’t just sign a small estate declaration just yet. Assuming your sister wasn’t married, her son is her sole heir and shall inherit the entire estate. The problem is that your nephew is still a minor, and cannot legally execute a small estate declaration. You can sign it for him, but you have to have the legal authority to do so. That’s why, after all this discussion of avoiding probate and saving on legal fees, I am sending you off to an attorney. In order to legally collect your sister’s estate and hold it for your nephew, you have to go to court.

There are two things that you can do. You can petition the court for appointment as your nephew’s guardian, which I think you should try to avoid. There isn’t a lot of money here and the guardianship will last only two years anyway. What I think you should do is to petition the court under Probate Code section 3410 to put the money into a blocked account, or into a custodial account under the Uniform Transfers to Minors Act. You will not have escaped the clutches of the court, but at least you will have avoided probate.

Len & Rosie