The name on the deed of property in California is very important.  If there is only one person who owns the property and that person is not married, then ownership is very clear.  However, if the person who is on the deed is married and the spouse’s name is not on the deed, then complications can occur.  Most complications can be avoided if there is a will and a trust, however only a Trust avoids Probate in California.  If two or more people are listed on the deed, they are usually listed as ‘joint tenants’, ‘tenants in common’ or ‘community property with rights of survivorship’.  These terms are very important and have different meanings:

  1. If the people on the deed are listed as ‘joint tenants’, this means that if one person passes away, the others maintain ownership & simply have to remove the deceased from the deed.
  2. If the people on the deed are listed as ‘tenants in common’, this means that if one person passes away, then the assets would be divided between the heirs of the deceased as well as the other ‘tenants in common’.  This would have implications for a Probate.
  3. If the people were married and the property is listed as ‘community property with rights of survivorship‘ then the property would transfer to the survivor upon death.

The distribution of assets is affected by how the name or names are listed on the deed.  Often people will put one name on the deed because that person has a better credit rating than another.  At other times, people will put the names on the deed of children or heirs.  There are repercussions as to the choice of who is listed on the deed and how they are listed.

The best option is to have a consultation with an Estate Planning Attorney to determine your legal rights and your legal options.  By doing this you will be able to make an informed decision as to how you wish your assets to be handled upon death and you will avoid errors that may be costly.

For more information on Probate, Wills or Living Trusts, call Legal Action Workshop @ 800-HELP-444 (800-435-7444) or visit our website www.LegalActionWorkshopLAW.com .

Reader Interactions

Comments

    • Brenda Platt-Drucker says

      Susan,
      It would be best to reach out to your mortgage company or get a copy of the deed to see how this would happen without your knowledge. You should also know how your names were listed prior to the change. If this occurred due to a probate or a trust transfer–you would also be able to see this on the deed (as compared to a prior deed). If this was fraud, you should speak with a civil attorney or a real estate attorney to determine exactly what happened.
      Good luck!

  1. New inspiration says

    Hello my name is listed under my sister name in a property we owned in California. Can I sell the home And what happened if she passed away before me. Or if I passed before her .

    • Brenda Platt-Drucker says

      Your name may be listed as a ‘joint tenant’ or ‘tenants in common’ so you would need to see how it is listed either by getting your deed or by seeing the name on your property tax bill. If you are listed either way, you cannot sell the property without the permission of the other party. If you are listed as ‘joint tenants’ if one passes away, the property will belong to the other party without the need for a probate. However, if you are listed as ‘tenants in common’ then the death of one party may require a probate and would go to the children or blood relatives of that person.
      Hope this helps!

  2. andie says

    Can a spouse take a equity loan out on their residential property , or buy and sell real estate properties, without the other’s knowledge or signature?

    • Brenda Platt-Drucker says

      It depends on whose name is on the deed. If both names are on the deed…yes, you would need both signatures for an equity loan. Properties could be bought without both signatures if the person said that he/she was married but separate property or could say that he/she is single even though this may be false.
      Hope this helps!

  3. Dawn says

    My mom & my brother bought the house together in 2020. My mom says that she owns 50% of the property and my brother and his spouse have 50% ownership. My brother just passed away last year, and we just found out that the property is already in the living trust of my brother and his spouse. How can I verify if my mother actually owns 50% of the property? Please advise. Thanks

    • Brenda Platt-Drucker says

      Dawn,
      You would need to get the deed to the property. It is usual in this situation to be listed as ‘tenants in common’ so that each party would own 1/2 of the house and if the party (or parties) passes away, that portion would either go through Probate or to beneficiaries listed in a Trust. This type of situation is never ideal but people do this arrangement for their own reasons.
      Hope this helps!

  4. RD Winslow says

    My wife and I are helping a Ukraine widow who was married for 7+ years to a Vet who died recently.
    She lives in Chico, CA and her name isn’t on title or mortgage; however she’s making mortgage payments. How does she get her name on both title and mortgage? Is probate necessary?

    • Brenda Platt-Drucker says

      If she was married to her deceased spouse and only his name is on the deed of the house, then she may need to go through Probate to get her name on the deed. However, there are factors that are also involved such as…was the house purchased during the marriage, how long were they married and do they have children (are they adults)? It is possible that a ‘spousal petition’ may also be used depending on these other factors.
      If you or her wish to discuss in more detail, you may call us @ 818-630-5503.
      Hope this helps!
      Brenda

  5. Yvette says

    My friend bought the house in 2000. A couple of years later, her son Peter was married and moved in with her. Peter and his spouse share the monthly mortgage with my friend so she added their names to the deed.
    In 2015, my friend transferred her ownership to Peter & his spouse through the Quitclaim Deed. Peter & his spouse then transferred the property to the living trust of himself and his spouse.
    Unfortunately, Peter passed away last year. My friend just wonders if she has any legal rights on the property since Peter is gone and his spouse may be remarried someday.
    Thanks

    • Brenda Platt-Drucker says

      Yvette,
      It’s always a good idea to speak with an attorney before these types of actions occur. However, now that she did the quitclaim then the instructions in the Trust would be followed. Typically, in a Trust when one party passes…the property goes to the other party. Her son may have had some provision for his mom…but she would have to check with the Trust for this information.
      Hope this helps!

  6. Kristi House-Jorcyk says

    Hi
    My husband and I were in joint tenants with our house, the loan has been paid off but unfortunately my husband has passed away and there was no trust or will.
    I don’t know where to find the deed and then get it transferred into my name. Where would you suggest I start?

    • Brenda Platt-Drucker says

      Kristi,
      Usually the County Recorder would have access to your deed and the way it was written. If you are listed as ‘joint tenants’ then, with the passing of your spouse, the home would belong to you. You would only need an ‘affidavit of death of joint tenant’ which would take the deceased spouse’s name off the deed.
      I hope this helps!
      Brenda

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