Real property owned by one individual in his or her name only will require a filing of an affidavit or petition in probate court.
HUNTINGTON BEACH, Calif. (PRWEB) November 14, 2019
Tip Sheet by Deed and Record provides an overview of the post-death transfer of California real property. The procedure to use depends on how the decedent owned or took title to the real property and the fair market value of the property. The most common forms of ownership by individuals are as a joint owner, as an individual, or as a trustee of the individual’s trust.
How the property was owned can be determined by the last deed recorded with recorder’s office in the County where the real-property is located. Co-owners are either as joint tenant, husband and wife or as a tenant-in-common. Husband and wife take ownership as either joint tenants or as community property with the right of survivorship.
Both joint tenancy and community property with the right of survivorship allow for the transfer of ownership to the survivor without the assistance of the courts. Owner transfer is by an affidavit of death signed by the survivor and along with a certificate of death, recorded with the county recorder. The affidavit establishes the survivor as the sole owner who can then sell, refinance or take out loans on the real property. The survivor then owns the real property as an individual.
Real property owned by an individual or jointly as a tenant-in-common require the assistance of the probate court to change ownership. The procedure to depends on the real property’s fair market value as of date of death. The break out is less than $50,000, $50,000 to $150,000 and over $150,000.
California law has a shortcut, or expedited probate procedure for real property less than $50,000 in value known as “Affidavit re Real Property of Small Value.” No court hearing is needed. This procedure is primarily available for timeshares, mineral rights, and undeveloped land away from the coast.
"Succession to Real Property" is available for real property valued at less than $150,000 but more than $50,000. This procedure is shorter than formal probate administration as it requires only one court hearing. The transfer is at the court’s discretion based on the evidence introduced at the hearing.
Real property with a market value greater than $150,000 requires formal probate administration. Probate is the court supervised, post-death distribution of a decedent’s assets as directed in his or her Will or by the laws of intestacy. Formal probate requires at a minimum two court hearings, three court orders and one year to complete.
Owner change out of a decedent’s trust is by an affidavit death of trustee and a deed recorded with the county recorder. The affidavit establishes the successor trustee identified in the trust as the person authorized to act on behalf of the deceased’s trust. The successor trustee can then sell or transfer the real property to the beneficiaries of the trust by deed.
This Tip Sheet by Deed and Record provided an overview of the post-death transfer of California real property. The most common forms of ownership by individuals are as a joint owner, as an individual, or in an individual’s trust. The procedure to use depends on how the decedent owned or took title to the real property and the fair market value of the property.
This Tip Sheet was written by Mark W. Bidwell, a probate and trust attorney, located in Huntington Beach, California. Office is located at 4952 Warner Avenue, Suite 235, Huntington Beach, California 92649. Phone number is 714-846-2888.
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