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My wife just recently died.When we bought our house in

Customer Question
My wife just recently...

My wife just recently died.When we bought our house in 1977,we bought it as joint tenants.We put our house into a living trust and now “Settlers confirm that all of the property described no matter how title was held is community property of both husband and wife and they each confirm the community property interest of the other in said property and all of such property shall retain its character as community property not withstanding it’s transfer to this trust .Does that mean that I lose my rights of survivorship,and that my son who is co beneficiary in the bypass trust owns half of the house when I die?Can he force me to sell it now.If I borrow against it,can he break it up into two halves,and what I borrowed will be deducted from the beneficiary of my half as opposed to selling the house,and splitting the difference with the beneficiaries evenly after the loan is paid off.

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

He is trying to become the trustee,because I had a terrible lawyer,who put a Declination form at the back of my trust and when we signed the papers both my wife and I signed the Declination to act as trustees due to sickness.We were told by the lawyer that that page only came into effect upon our incapacity or sickness,and he instructed us to sign it.We are going to court to try to get me reinstated as the trustee.We already submitted a declaration that this was signed by mistake,because I didn’t really understand it,and the lawyer instructed us to sign it.

Lawyer's Assistant: Where is the house located?

San Francisco,but the court date is in Napa,because that is where my son lives.I was out of the country when my attorney went to court the first time to get the venue changed back to SF,but the judge kept it in Napa and assigned my son as temporary trustee.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The lawyer(his lawyer),out of nowhere sent us a letter saying that I owe her 41,000.I was wondering why my son got an attorney,because he is really cheap.Now I know why.She promised him that I would have to pay.Is that true?

Lawyer's Assistant: Because the Real Estate Lawyer will solve your problem quickly right now and for a fraction of the cost of seeing an in-person Real Estate Lawyer.

Can you answer my questions,now?

Submitted: 30 days ago.Category: Estate Law
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Answered in 1 hour by:
3/28/2018
Estate Lawyer: LegalGems, Attorney replied 30 days ago
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 12,570
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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to be clear the deed still states it is held as joint tenancy?
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Customer reply replied 30 days ago
The original deed,yes.
Customer reply replied 30 days ago
I didn’t know that the deed changes.Does it become updated?Isnt there just one deed?
Customer reply replied 29 days ago
All the deeds I found say joint tenants
Estate Lawyer: LegalGems, Attorney replied 29 days ago

Thank you;

In order for real estate to be included in a trust there are 2 requirements:

1. the deed must state that the property is held in trust- so the deed would list the name of the trust, not the individual owners

2. the property must be listed on the trust's schedule of assets.

As such if a deed remains as joint tenants with right of survivorship that is controlling which means that upon the death of the first spouse, the remaining spouse, by operation of law, becomes the sole owner.

To perfect title the surviving spouse files the death certificate and an affidavit of heirship with the recorder's office where the property is located;

see the below example:

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.

That information is here:

http://www.alameda.courts.ca.gov/Pages.aspx/Simplified-Probate-Procedures

A person is not liable for the legal fees of another person unless they are contractually obligated, or a court makes such an order.

Further questions please post here otherwise kindly rate 5 stars if you feel I have earned it. Thank you.

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Estate Lawyer: LegalGems, Attorney replied 28 days ago

Hello; just checking in on the above.
If you have further questions please post here and I will do my best to get you the requested information.
Otherwise
kindly rate positively (hopefully you feel I have earned 5 stars) to help maintain my high customer satisfaction score and so I know you were satisfied with my services.

The above information is for educational purposes only. An attorney in one's jurisdiction can be located at https://www.americanbar.org/groups/legal_services/flh-home.html
Thank you.

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