San Jose, CA asked in Estate Planning, Real Estate Law and Probate for California

Q: If a home is left to me would I still have to go through probate if the owner had put me on the deed? Thank you,

4 Lawyer Answers
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: That depends on how the deed is worded. If it lists you as a joint tenant with rights of survivorship then you are now the full owner and skip Probate, but you need to file an affidavit with the county clerk and show them the death certificate to get the house recorded in your name alone.

If you are listed on the deed in some other way then you still skip Probate because you are probably not the owner of the deceased person's interest.

Look at the deed. Talk to a lawyer.

Sally Bergman
Sally Bergman
Answered
  • Estate Planning Lawyer
  • San Mateo, CA
  • Licensed in California

A: If you hold title with the owner as "joint tenants", no probate would be required. If title is held as tenants in common, half of the property would have to be probated.

However, adding an individual's name to real property is typically a very bad idea and has adverse consequences. Depending upon what your relation is to the original owner, if you are anyone other than a child living in the home, half of the property will be reassessed so the property taxes could increase greatly. If the individual owns a home when they die, 100% of the property receives a "step up" in basis to the current market value. This means that if the person who inherits the property wants to sell it, there's not likely to be a capital gains tax. When a second person's name is added to title, only one-half of the property receives the step-up in basis and the other half is subject to a capital gains tax.

My experience in San Mateo and Santa Clara Counties is that many people have lived in their homes for many years, often paid less than $100,000 for their homes, pay very low property taxes, and their homes are often worth $2M or more.

There are ways to preserve the low property taxes, avoid probate and capital gains taxes. Adding one or more individual's names to a deed is not the right way to go about doing that. You should talk to a lawyer about possibly rescinding the deed and preparing an estate plan that can achieve a better result for everyone.

Julie King
Julie King
Answered
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: It would depend on the wording used in your particular deed.

Howard E. Kane
Howard E. Kane
PREMIUM
Answered
  • Estate Planning Lawyer
  • Oakland, CA
  • Licensed in California

A: California also has a Transfer on Death (TOD) deed, which is another probate avoidance deed. This also requires that an Affidavit of Death be sent to the county recorder's office where the property is located.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.