How to Avoid Probate of California Real Property After Death of Spouse, Tip Sheet by Deed and Record

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A surviving spouse must take steps to perfect title and avoid probate after death of co-owner spouse. Tip Sheet by Deed and Record explains how to transfer ownership of the deceased spouse and how to avoid probate on the death of the surviving spouse.

Superior Court of California Probate Division

Real property in California jointly owned by a married couple is most often titled with the right of survivorship. On the death of one spouse, the survivor is the sole owner. Tip Sheet by Deed and Record explains what to do after the death of the first spouse and how to avoid probate on the death of the second spouse.

When buying a home in California most married couples take ownership either as joint tenants with the right of survivorship or as community property with the right of survivorship. This survivorship right allows for the ownership transfer due to one spouse’s death without filing a petition in probate court. The right is asserted by the surviving spouse with documents known as “affidavit of death of joint tenant” or “affidavit death of community property owner with right of survivorship.”

The affidavit avoids probate on the death of the first spouse, but not on the death of the second spouse. The second spouse must take the additional step of either creating a living trust or executing a deed known as a "revocable transfer on death deed” also known as a (“TOD Deed”).

A TOD Deed transfers on death the family home owned by one person to other people named on the deed. While alive, the owner maintains control of the family home, property taxes remain the same and the deed can be revoked at any time. The TOD Deed does not affect eligibility for Medi-Cal.

A TOD Deed is new to California. An established alternative is the “living trust.” A living trust also maintains control and there is no change in property taxes or Medi-Cal eligibility. But a living trust offers flexibility in distribution of real property.

In a living trust document, alternate scenarios can be anticipated and contingent distributions made. Examples of contingencies are alternate distributions due to the death of a beneficiary or a distribution made to a minor. Also in a trust, distributions can be delayed.

Most married couples take ownership either as joint tenants with the right of survivorship or as community property with the right of survivorship. There is no problem on the death of the first spouse with the right of survivorship. But before the second spouse dies, he or she must prepare a revocable transfer on death deed or a living trust.

This press release prepared by Mark W. Bidwell, an attorney in Huntington Beach, California. Office is located at 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Phone is 714-846-2888. Web address is http://www.deedandrecord.com

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Mark Bidwell
Timeshare Lovers
since: 05/2016
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