Dear Len & Rosie,
When I married my husband we had separate homes. Mine was upside down and I wanted to keep it until it turned around but he wanted to get rid of it. I said I would do that if he would put me on the deed to his home in joint tenancy, which he did. We don't have wills or a trust and I've been trying to get him to do one. He seems to think when he dies, half the house is mine and half belongs to his kids only. We've been married more than 14 years and I've spent lots of money repairing and fixing up this old house. He feels it's all his and his daughters and I feel it's ours and then divided equally between our five kids when we're both gone. What does the law say?
This is one of those times where you are probably better off keeping quiet about this and not creating a trust. We say this because if the title to the home remains as it is today and your husband dies before you, you will own the entire home. A joint tenancy is a "last person standing" deed. When a joint tenant dies, the home is automatically owned by the surviving joint tenants.
Upon your husband's death, all you will need to do to perfect title in your name alone is to record his Certificate of Death with an Affidavit of Death of Joint Tenant. You will also have to submit a Preliminary Change of Ownership Report to the county assessor to prevent a reassessment that could otherwise increase your property taxes. Joint tenancy property passes free of probate administration. Even if your husband had a will leaving his entire estate to his children instead of you, the home will be yours upon his death.
But you have to keep an eye out. It is possible for joint tenants to "sever" a joint tenancy by recording a deed transferring their joint tenancy interests to themselves as tenants in common. Your husband could do this himself without your permission. If he does so, then his half of the home would be subject to probate upon his death and could pass to his children.
The good news is that your husband cannot sign a deed severing the joint tenancy and hand it over to his children for them to record after his death. Under California Civil Code section 683.2, a deed severing a joint tenancy has to be recorded before death, unless it was signed within three days of the date of death and recorded no later than seven days after the death.
If your husband does sever the joint tenancy, then his half will pass by his will if he has one. If he does not, then it gets complicated. Depending on how much money each of you put into the home, and when you did it, part of his share of the home may be community property passing to you, and part will be your husband's separate property which will pass one-third to you and two-thirds among his children by intestate succession (the law about who gets what when someone dies without a will).
The smart thing to do is to create a trust that will take into account the desires of both of you. You and your husband could enter into an agreement by which you leave everything to one another on the first death, and when the survivor dies, half goes to your family and half goes to his. This way, you could have the security of a home to live in for the rest of your life, and your husband can rest knowing that eventually his children will get their just inheritance.
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 on the Internet at www.lentillem.com. Len also answers legal questions each weekday, 3-4 PM, on KKSF Newstalk 910 AM.