Community Property and Probate

Dear Len & Rosie,

My wife and I owned our home, a condominium, as joint tenants. When she learned she had terminal cancer she recorded a deed for her half of the property, giving it to herself. She also made a will leaving her estate to her two children and our son. My wife died three years ago, but nobody has filed for probate. Can I make a deal with my son and step-children without going through probate?



Dear Jon,

Normally when people own property together in joint tenancy and one of them dies, the surviving joint tenant owns the property automatically, outside of probate. All there is to do is to record the deceased owner's certificate of death, attached to an affidavit of death of joint tenant.

Your wife threw that plan out of the window by "severing" the joint tenancy. This is perfectly legal as long as the deed was recorded prior to your wife's death, or if your wife signed the deed on her deathbed at within three days of her death and the deed was recorded within seven days after her death.

Assuming she did it right, your wife's half of the property now belongs to her probate estate and passes under the terms of her will. Again, this is perfectly legal. Your wife had the right to dispose of her assets, even her half of the community property, in any manner she chose.

Normally, your wife's estate is subject to probate. However, if the gross value of your wife's share of the property is worth less than $150,000, then her heirs can petition the court under Probate Code section 13150 for an order transferring the home. It's much easier, cheaper, and faster to do than a full probate. You will still have to get your wife's interest in the home appraised by a California Probate Referee, but you won't need to give notice to creditors or prepare an accounting. The whole process shouldn't take more than a couple of months, and most of that time will be waiting for the Probate Referee to finish his or her appraisal of the property.

Either way, it's not very good news for you. She left her half of the property to her children, not you. The only real claim you would have against her half of the property would be for the mortgage payments you've been making after your wife's death.

But there is good news. It's been three years and the three children haven't been clamoring to probate the estate, force a sale of the property, and kick you out to the curb. You may be able to make a deal with them. They may even disagree with what their mother did and let you keep the home. Let them know that you'll remember their generosity when you make your own will or trust.

Len & Rosie