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LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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I live in California, approx. 3 1/2 years my Mother and

Customer Question

I live in California, approx. 3 1/2 years my Mother and Father put my husband and I on the deed to the house we and my Father lived in because we took care of him. Her name is ***** ***** the deed. The deed says "all as joint tenants". My Father recently died,
everything I have looked up states that when the deed reads this way that no one can inherit someone else's share after death. I just got a letter from a lawyer stating that my Mother now owns my Fathers share making her half owner. She has since regretted
giving us half the house and wants us to sell so she can have her half of the money. My question is, Does she own 1/3 after my Fathers death or can she inherit his portion after death?
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

My sympathies for your loss; a few minutes please as I look into this for you.

Expert:  LegalGems replied 1 year ago.

Joint tenancy passes outside of probate, by operation of law, so that the other joint tenants on the property, via the "right of survivorship" take the deceased's interest.

This process continues until the joint tenancy is severed, or until there is only one surviving joint tenant.

CA does not have an "elective share" or "dower rights" for surviving spouses; the idea is that each person ownes their 1/2 of the community property and can deed/bequeath/give it to any party of their choosing.

If a married couple owns property in JTWROS then the surviving spouse takes, by operation of law (via the deed) full ownership. However, this theory also applies for unmarried people as JTWROS has no requirement that the joint tenants be married.

Even if a will names an heir for a specific property, if that property is held in JTWRTOS then the deed governs, and the party on the deed inherits.

This is the same with intestate succession (no will) - then the property still goes to the named person on the deed. The deed is controlling.

Per CA Civil Code: (here)

683. (a) A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself or herself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from a husband and wife, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. A joint tenancy in personal property may be created by a written transfer, instrument, or agreement. (b) Provisions of this section do not apply to a joint account in a financial institution if Part 2 (commencing with Section 5100) of Division 5 of the Probate Code applies to such account.

Expert:  LegalGems replied 1 year ago.

More information located on the state's court website:

What is joint tenancy?
Joint tenancy is a way for two or more people to own property in equal shares so that when one of the joint tenants dies, the property can pass to the surviving joint tenant(s) without having to go through probate court.

Does joint tenancy have tax implications?
Yes. If a joint tenant dies, the property is included in his or her taxable estate. Talk to a lawyer before putting property in joint tenancy or ending a joint tenancy.

How do I create a joint tenancy?
You must have a written document, like a deed to real property or title to a car, that says the property is in joint tenancy with the names of the joint tenants.

What kinds of property do people put in joint tenancy?
The most common assets owned jointly are real property (land or buildings), bank accounts, stocks and bonds and automobiles.

How do I change the title on real property after the other tenant dies?
You do not have to go to court. But, you need:

  • A certified copy of the death certificate of the joint tenant who died
  • An Affidavit signed by "anyone with knowledge of the facts"



You can change the tile using a form called “Affidavit of Death of Joint Tenant.” [See the Sample Affidavit below.]

There may be tax consequences. So, talk to a lawyer before you record the Affidavit.

How do I prepare an Affidavit?
You can use this Sample Form. It is not an official form, but you can use it for most cases.

(Sample Form)

AFFIDAVIT OF DEATH OF JOINT TENANT
STATE OF CALIFORNIA
COUNTY OF ALAMEDA

I, [affiant's name], being duly sworn, say:

I am 18 years of age or over. The decedent described in the attached certified copy of Certificate of Death is the same person as [name of person who died here], who is named as one of the parties in the deed dated [date], executed by [name of grantor] to [name of decedent] and [name of surviving joint tenant], as joint tenants, recorded on [date], in [ e.g., Book __, page __] of the Official Records of Alameda County, California, covering the property situated in [city], Alameda County, California, described as follows:

[Provide legal description]

Dated: _________[Signature]____

____[Typed name]______

Affiant

Subscribed and sworn to before me on [date]

___[Signature]___

___[Typed name]__ [Seal] Notary Public for the State of California

To read more about the law on this topic, see Probate Code Section 210-212.

How do I record an Affidavit?
Take a certified copy of the death certificate of the deceased joint tenant and your affidavit to the recorder's office in the county where the real property is located. How do I handle bank accounts held in joint tenancy?
In most cases, you can remove the deceased person’s name from the accounts by taking these documents to the bank:

  • A certified copy of the death certificate of the deceased joint tenant, and
  • A check drawn for the balance of the checking account, or
  • The savings account passbook.
Expert:  LegalGems replied 1 year ago.

Link for your reference:

here

Expert:  LegalGems replied 1 year ago.

--------------------------------------
Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

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