Q: Summary probate needed for real estate in CA?
I've been living in the same house with both my parents for 20+ years and we're all on the title to the house as TIC with each of us having 1/3 interest on the house. About 4 months ago my dad passed, leaving a Will saying that his entire interest in the house (basically his 1/3) goes to me. Mom and I still live in the same house and mom is taking over the mortgage being that she co-borrowed on the loan. Doesn't CA have an inheritance law where I would be able to assume mortgage payments when I receive his share? And how does summary probate work in this case (our house is estimated at around $330k)?
A:
State inheritance laws do not dictate who is liable for loans after a borrower passes if the estate does not cover them. However, there is a federal law that prohibits lenders from calling residential mortgage loans due if a borrower passes. Of course, if the heirs don't keep making the payments, the lender can foreclose.
If you WANT to assume the loan of a decedent, you can apply to the lender for that. Just understand that you don't HAVE to assume the loan and the lender can't foreclose if you don't (again, assuming this is a residential mortgage loan).
For details on how to probate your dad's estate, see a probate attorney. A complete "how to to a probate" is beyond the scope of this forum, which is only meant for answering basic legal questions of a general nature.
It would be well worth your while to consult with an estate planning attorney also. Do-it-yourself estate plans rarely work out well. There are many goals that a proper estate plan can accomplish, such as probate avoidance, tax savings and Medicaid pre-planning.
Gerald Barry Dorfman agrees with this answer
A:
I agree with Nina on her response regarding your loan.
As far as who gets your father's 1/3 share of the house, that will depend on whether he had a last Will or not. If he had a last Will, his 1/3 share will pass to the beneficiaries named under that Will but only after your obtain a probate court order to that effect (summary procedures are available for small estates under $166,250). If he did not have a last Will, his 1/3 would pass to his wife and child(ren) according to the laws of intestacy (but again, only with a court order). If you need help with any probate work, give me a call or send me an email and I'll be happy to help.
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