Tip Sheet for Surviving Spouse Owning California Real Property as Joint Tenant by Mark W. Bidwell

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Ownership of California real property held in joint tenancy passes automatically to the surviving spouse. Mark W. Bidwell, a licensed California attorney, explains in this tip sheet what the surviving spouse needs to know as the survivor.

Mark W. Bidwell, Attorney at Law

An Affidavit is a declaration, under oath.

In California husbands and wives usually own property together as joint tenants. When one spouse dies, ownership under California law passes automatically to the survivor. Mark W. Bidwell, attorney at law, provides tips on the consequences of survivor ownership in joint tenancy.

If the surviving spouse needs to sell, refinance, gift or trust fund the real estate, the deceased spouse must first be taken off title as an owner of the real property. The deceased spouse is taken off title by an Affidavit filed with the County Recorder.

The Affidavit is a declaration, under oath, by the surviving spouse. The surviving spouse declares the other spouse has died and attaches a certified copy of the death certificate. The affidavit is filed in the county where the real property is located. It is now of public record the surviving spouse has the authority to take sole control of the real property and may sell, borrow or change title on the property.

An online service to prepare and record Affidavits for the surviving spouse is at http://www.DeedAndRecord.com.

The problem remains of what happens to the real property when the surviving spouse dies. If nothing more is done the property passes to heirs through probate. Probate is the process of transferring real property from a person who had died to his or her heirs under the supervision of the Superior Court of California. Probate is costly, usually takes about one year and is open to the public.

The best way for the surviving spouse to avoid probate is to create a living trust. Title in the real property is transferred into the trust. The surviving spouse maintains control and may sell, borrow, or gift the property. Nothing really changes while the surviving spouse is living.

Upon the death of the surviving spouse another Affidavit is filed with the county by the successor trustee. This Affidavit is a declaration, under oath, by the successor trustee the surviving spouse has died and a certified copy of the death certificate is attached to the Affidavit.

The successor trustee also states in the affidavit he or she has authority to act on behalf of the trust and to take control of the real property. The successor trustee can only do what is permitted by the terms of the trust. Trusts most often call for distribution to children of the deceased spouse either by sale or transfer in ownership by quit claim deed.

A properly prepared affidavit must have a legal description so the county recorder’s office can add the affidavit to the public chain of title. The legal description is not the street address. The legal description has at a minimum the tract, map, block and lot number of the real estate property. County recorders will not accept affidavits without a legal description.

Deed and Record is an online service to prepare affidavits for real property in California. This online service records affidavits it has prepared with the appropriate county recorder. Deed and Record markets through websites, primarily, DeedAndRecord.com. The owner of the websites is Mark W. Bidwell, Attorney at Law and CPA Inactive (http://www.BidwellLaw.com). Office is located at 18831 Von Karman Avenue, Suite 270, Irvine, California 92612. Phone number is 949-474-0961. Email is Mark@DeedandRecord.com.

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