Tip Sheet on Transfer of California Real Property Owned by a Relative Who Has Died, by Mark W. Bidwell

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The key to transfer California real property of a relative who has died is to look at the last transfer deed and see how the property was owned. In this Tip Sheet, Mark W. Bidwell, a licensed California attorney matches the appropriate legal procedure to ownership.

Deed to transfer ownership in California real property and real estate.

Look at the last transfer deed to determine ownership.

How a decedent owned real property determines the procedure to transfer ownership. Look at the last transfer deed to determine ownership. In this Tip Sheet Mark W. Bidwell explains the legal procedures needed for each type of ownership permitted under California law. Ownership is by one of the following: decedent’s name only; decedent as a co-owner, tenant-in-common; decedent as a co-owner, joint tenant, decedent’s trust, or in a revocable transfer on death deed.

Real property in California owned in the decedent’s name only must be transferred through probate court. This includes real property owned as a tenant-in-common. The legal procedure to use depends on the fair market value of the real estate. There are three tiers of value; less than $50,000, greater than $50,000 but less than $150,000, and greater than $150,000.

The “Affidavit Real Property of Small Value” is a powerful and inexpensive tool to avoid probate and save time for California real property valued at less than $50,000. This procedure is a two-step process. The first step is to obtain authority from the Court. The second step is to record the ownership change with the County Recorder.

Property appraised at more than $50,000 but less than $150,000 is collected and transferred by court order. A petition known as “Petition to Determine Succession to Real Property” is prepared, a hearing date is scheduled and heirs are notified. After the hearing the court order is filed with the county recorder. The filed court order allows for a deed to change ownership.

Real property with a market value greater than $150,000 is transferred by formal probate administration in a California courts referred to as a “probate court.” Each county in California has at least one probate court. Probate administration is most likely a one year process and is open to the public.

Real property owned by the decedent in joint tenancy with a living co-owner is transferred to the surviving joint tenant by an affidavit, supported by a death certificate that is recorded with the county recorder. If both joint tenants have died and the real property owner was the first to die, his or her interest disappears and the second to die’s interest is transferred through probate court.

There is no need for probate for real property owned by a trust. Transfer is by two documents, an “Affidavit Death of Trustee” and Deed. An Affidavit Death of Trustee is a declaration, under oath, by the successor trustee of facts such as death identity of the successor trustee. The affidavit is filed with the county recorder to establish the successor trustee has the authority to take control of the real property. The successor trustee can prepare and record a deed to transfer real property from the trust to the beneficiaries of the trust.

Even if the property is owned in the decedent’s name only It may still be possible to transfer the real property without formal probate administration if the decedent created a trust. A "Heggstad Petition" or a "Section 850 Petition" is needed. Either petition requires a court hearing for a court order to transfer the real property into the trust. Success of the petition depends on the facts and circumstances supporting the petition.

In 2016 California created a new deed called a “revocable transfer pay on death deed” that avoids probate while at the same time protects the owner and protects the property tax base. The deed identifies who will inherit the real property on the death of the owner. No trust or probate procedure is needed.

How a person who has died owned real property determines the procedure to transfer ownership. The best way to determine ownership is to look at the last transfer deed. Ownership is by one of the following: decedent’s name only; decedent as a co-owner, tenant-in-common; decedent as a co-owner, joint tenant, decedent’s trust, or in a revocable transfer on death deed.

Real property in California owned either in the decedent’s name only or as a tenant-in-common must be transferred through probate court. The legal procedure to use depends on the fair market value of the real estate. There are three tiers of value; less than $50,000, greater than $50,000 but less than $150,000, and greater than $150,000.

Real property owned by a trust, owned in joint tenancy or owned by “revocable transfer pay on death deed” avoid probate. Transfer of ownership is by an affidavit to establish authority to transfer the real property to the decedent’s heirs. The affidavit is recorded with the county recorder.

This Tip Sheet is provided by Mark W. Bidwell, attorney at law. Office is located at 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Phone number is 714-846-2888.

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Mark Bidwell
Timeshare Lovers
since: 05/2016
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