Question: I owned my house as a "joint tenant" or "community property" with my spouse who just recently passed away. What steps do I have to take for my house or "clear title" so I can sell it later?
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If a married couple held title to real property as community property with right of survivorship and one spouse passes away, then the surviving spouse will take from the deceased spouse their interest in the property, thereby leaving the surviving spouse with full interest in that property without the need for the property to go through probate administration.
The surviving spouse can file appropriate paperwork with the county in which the property is located in, along with a certified copy of the deceased's death certificate, to "clear title" and show that s/he is the sole owner of the property. This allows the property to be marketable.
The above can also occur if property is held in joint tenancy. Please note that the full ramifications of holding title to real estate as either community property with right of survivorship, or as a joint tenancy can be complex for different families. This article is just a brief overview for general informational purposes and should not be taken as legal advice of any kind.
Even though the ownership interest passes "automatically" to the survivor, the survivor must still take some formal steps to ensure that the title to the property is marketable.
For a glossary of some of the more technical estate planning terms used in this article, please refer to this page.
Joint tenancy (or JT) interest in real property is one owned by two or more persons in equal shares, by a title created by a single will or transfer. When a joint tenant dies there is no need for probate because title passes to the surviving joint tenant or tenants by operation of law.
Community property (CP) is a form of title that can only be taken by people who are married to each other. CP with right of survivorship is similar to JT in that no probate is necessary and title passes to the surviving spouse.
Formal probate administration (or what we simply call "probate") is costly, time-consuming, invades privacy, and typically involves lawyers and the court system. Successful estate planning help clients avoid probate of assets to maximize the value of properties passing onto their beneficiaries.
Holding title to real property as community property with right of survivorship can help that property avoid probate. Similar for properties held under joint tenancies. There can be abuses, however, if careful planning is not done, especially with JT.
When married people buy properties in California, the title company, agent, or attorney working on the matter and helping to prepare your new deed will put some form of CP with right of survivorship or JT on your deed, unless you explicitly tell them otherwise.
With many things in law, if you have the time and patience you may be able to clear title to such properties yourself. If you need professional assistance from an experienced estate planning attorney, please feel free to contact our law firm at any time for a free consultation. To see why Yu & Yu Law may be the right fit for you, please see our firm philosophy here.
Thank you for reading.