How to add your spouse to the title of your home.

Dear Len & Rosie,

My husband and I would like to add my name to the title of our home, which we own free and clear.  Presently the home is only in his name. What is the process to add my name?

Nike

Dear Nike,

It’s good that you are dealing with this now. If your husband were to die before you get this taken care of, then the property will be subject to probate. If the home was purchased during the marriage and was paid for with community property (your wage income), then you would inherit the entire home and you could avoid probate with a Spousal Property Petition, which is much cheaper and faster than probate.

But your husband probably first purchased the home before he married you, or he may have inherited it. If that’s the case, then all or a portion of the home is presently your husband’s sole and separate property.  If he were to die without a will, then you would inherit only one-half of his separate property interest (if he has no children or only one child) or one-third (if he has more than one child). We point this out so that you and our readers may understand that if you don’t deal with this now, there could be a big mess if your husband dies - you could be pitted in a legal dispute with your own children or stepchildren, or even your husband’s more distant family members.

There are two ways of dealing with this. The cheap and easy way is to hire a lawyer to prepare and record a quitclaim deed conveying the property to the two of you as either “Joint Tenants” or as “husband and wife as Community Property With Right of Survivorship.” Both forms of title will avoid probate on the death of the first of you to die, but the latter is a better way to hold title, because it ensures that the property will be treated as community property on the first death. If the home is community property, then the entire home gets a step-up in cost basis on the first death, instead of only the half owned by the dead spouse.

The best way of dealing with this property is for you and your husband to see a trusts and estates attorney and create a revocable trust that will avoid probate on the second death as well as the first. While you’re at it, make sure that you have a complete estate plan including Durable General Powers of Attorney and Advance Health Care Directives so that you will each be able to make important financial and medical decisions for one another in the event either of you are ever incapacitated.

Len & Rosie

Siblings inherit property together, at odds with what to do with it.

Dear Len & Rosie,

My sister and I inherited fifteen acres in the Sierra foothills from our parents. It’s not worth that much. There’s a small cabin there where my family stays every year. I want to keep the property in the family. The problem is that my sister wants out. She lives in North Carolina and hardly ever visits. She wants to sell the property and use her half of the money to help her son buy a home. I can’t afford to buy her out and the county won’t let us subdivide the property either. Can my sister force me to sell our family’s history?

Rebecca

Dear Rebecca,

Unlucky for you, the law is on your sister’s side. There is a long-standing legal doctrine against “restraints against alienation.” The idea is that if you own property, then you ought to be able to get rid of it. When a piece of land, such as your inheritance, is owned by two or more people, then any one owner can usually force a sale of the property in an action for partition.

In a partition action, the court will order the sale of the property unless you can somehow convince the judge that it’s in the best interest of both you and your sister not to sell the property. Good luck on that one. From what you wrote in your letter, it’s fairly clear that your sister derives little benefit from the property. Your best bet is to find some way of buying her out, or hope she does not seek the advice of a real estate attorney.

Maybe your children would be willing to chip in with you to buy out your sister. If they aren’t willing to do so, then maybe you’re the only one in the family who really wants to hold on to the property. Our advice in that case is to give up. If your sister gets a lawyer to send you a letter threatening a partition action, give up. Fighting your sister in a partition will cost you money and your relationship with her, and you’ll lose.

Your property taxes must be very low, because when your parents died, you and your sister avoided a property tax increase because of the Proposition 58 parent to child transfer reassessment exclusion. If you are able to buy out your sister, that exclusion won’t apply. Your sister’s half of the property will be reassessed to its present value.

It’s all water under the bridge now, but it may have been possible for your parents to have prevented your problems. They could have given this property to you and other assets to your sister, even if that resulted in you getting more. Or they could have left the property to a dynasty trust for the benefit of the family that prohibits the sale of the property unless everyone agrees. Transferring a property into a dynasty trust can allow you to tie up the property for generations to come. While it is too late for your parents to have done this, this is something for you to think about when it comes time to creating your own estate plan.

Len & Rosie