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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 37773
Experience:  30 years in civil, probate, real estate, elder law
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My step-mother and father purchased a house in 2007. Somehow

Customer Question

My step-mother and father purchased a house in 2007. Somehow the deed was only as husband and wife. I completed the de-221 incorrect the first time. I been given another date. I have the de*221 completed correctly this time. The only issue I have is answering
Which one should I choose?
1. A Determination of property passing to the surviving spouse
1. B Confirmation of the property belong to the surviving spouse
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

What number of the form are you referring too, what line item so I make sure I get this correct, were they legally married here,thanks.

Expert:  Ray replied 1 year ago.

Sorry I see it now. It is 1a

determination of property passing to the surviving spouse or surviving registered domestic partner without administration

(Fam. Code, § 297.5, Prob. Code, § 13500). assuming that she was not on the deed.

Can you please follow up here and tell me what exactly you are wanting to do here.Again want to make sure we get it right here.

Expert:  Ray replied 1 year ago.

Have you been appointed personal representative here yet in probate and are now trying to divide the property and asserting his claim to it for his estate??

Expert:  Ray replied 1 year ago.

You wrote..

Somehow the deed was only as husband and wife..

Can you clarify here and help follow up.Be happy to help you.

Customer: replied 1 year ago.
Hello Ray,She is on the deed. The deed is husband and wife. Deed not joint tenancy. I am filing in her name.
See below:
hereby GRANT(S) to Jimmie V. Hollins and Fayma Lynn Hollins, husband and wifeThank you,James
Customer: replied 1 year ago.
I am executor of estate
Expert:  Ray replied 1 year ago.

Ok I understand, it is 1a here because if dad deceased first then she may have gotten more than her half here if there was no will or he left her a share.So she gets half here and maybe more.

This makes sense and this should help you resolve the matter.

Expert:  Ray replied 1 year ago.

If you are wanting to force a sale here don't forget 1c to appoint a referee, that would be the time you check if you want it sold here after the court decides her share.

Expert:  Ray replied 1 year ago.

I would be happy to look at your form here after it is done, this is done through additional services.I will send you the offer.

Expert:  Ray replied 1 year ago.

Thanks again.

Customer: replied 1 year ago.
Attached is the DE-221.I have probate referee completed docs
I have completed attachment #9
I have completed proof of mailing. I will mail to my step-brothers
Yes, there is a will. My Step-mother and I are beneficiaries.
Expert:  Ray replied 1 year ago.

You need to positive rate and accept my offer of additional services.Then I will review it and respond and answer any other questions you have here.Thanks.

Expert:  Ray replied 1 year ago.

It will take me some time to go over it here.

Expert:  Ray replied 1 year ago.

And let me verify you are executor of her estate--you called her step mother is that correct too.

Customer: replied 1 year ago.
My dad made me the executor of estate. My dad is Jimmie. Fayma is his wife.
I am also the power of attorney for both. This is my last task
Expert:  Ray replied 1 year ago.

OK that makes sense. If you have filed probate here and been court appointed executor for her then you need to redo Item 12 if not then dad here has to sign.Only a probate court can legally appoint you executor.So here the step mother needs probate opened, you get appointed and receive letters testamentary.Otherwise dad can file this not you because you are not legally appointed yet.Is that clear--that maybe your problem here.

Expert:  Ray replied 1 year ago.

For step mo a DE-111 to open probate and appoint you as personal representative here..

http://www.courts.ca.gov/documents/de111.pdf

Customer: replied 1 year ago.
I am going to just file in her name, not mine. We do not need to have a probate because we are only talking about estate $43,500 for the house ( his estate). House is $87,000
Expert:  Ray replied 1 year ago.

Here is a short video on filing a DE-111

https://www.youtube.com/watch?v=B1kWyKErMUE

So here there really needs to be probate opened here as set out above.You are court appointed executor assuming none of the children here show up and object. Once legally appointed here then you can file the DE-221.You are skipping a step here that why you are having problems. Any creditor claims against mother will have to be paid.If there are none then he gets his half and a share of hers under laws of intestacy..

Customer: replied 1 year ago.
I judge only wanted me to complete the form correctly and add step-brothers in item #9. Also, wanted me to have a proof of mailing. Judge indicated that I can amend, not refiling and paying for new case.
Expert:  Ray replied 1 year ago.

He inherits her share here as sole heir if it was community.

Laws of intestacy

http://www.nolo.com/legal-encyclopedia/intestate-succession-california.html

So here you just need to open probate and be appointed.The DE-111 above.Since he is sole heir as the personal representative if there are no creditors you deed the half interest to the dad.You don't need to file a DE-221 at all.

Probate resolves this if it was community property.

Expert:  Ray replied 1 year ago.
  • a spouse and children
  • spouse inherits all of your community property and 1/2 or 1/3 of your separate property
  • children inherit 1/2 or 2/3 of your separate property

Thanks again.

Expert:  Ray replied 1 year ago.

Again you are skipping probate application for mother.Judge didn't understand the situation.Here you need probate for step mother, dad is sole heir.So once appointed you are able to deed it to him by fiduciary deed.Is that clear.You are trying to skip probate but it will not work here.

Expert:  Ray replied 1 year ago.

Since dad gets it all here you deed it to hi as the PR for the estate.

Expert:  Ray replied 1 year ago.

Here is the form you sign once appointed giving him her one half share ..

http://www.uslegalforms.com/ca/CA-SDEED-6.htm

No way around probate here.The judge wasn't clear on what you were trying to do here--sorry it took me awhile to understand it too.

Expert:  Ray replied 1 year ago.

If you want me to look at the DE-11 when you get it done be happy to do so.

You would need to do the DE-221 only if the children had an interest and you are trying to force a sale of property here.You don't need this.Thanks again.

Expert:  Ray replied 1 year ago.

I would appreciate it if you can positive rate.