Phoenix, AZ asked in Estate Planning, Family Law and Real Estate Law for California

Q: My dad and I are joint tenants of a home. If my dad passes does full ownership transfer over me or his wife?

We recently purchased a home and my dad is married to someone that is not my mother. Would his rights of the property transfer to me or would it be handed over to his spouse. When we closed on the home, they did make her sign a paper acknowledging that she was not going to be on the deed to the home.

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

A: So long as neither of you (your dad or you) transfer your half of the property during your father's lifetime, then you will receive his half upon his death -- even if your father's trust or will says otherwise.

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

A: If the joint tenancy deed remains intact, then you will be the sole owner upon your father's passing. However, you will need to file/record an Affidavit of Death of Joint Tenant with the county recorder's office. However, a joint tenancy deed can be terminated if either joint tenant records a deed that transfers the property to both owners as tenants in common. From there, either party can transfer their 50% ownership to a third party.

David J. O'Connell
David J. O'Connell
Answered
  • Estate Planning Lawyer
  • Escondido, CA
  • Licensed in California

A: The answer is, as is always the case, it depends.

If the "paper" your step-mother signed was an "inter-spousal grant deed," and that deed granted your father title to the property as "his sole and separate property," then your father took full title and could dispose of the property as his estate planning dictates, if he has any. Even as his sole and separate property, the new spouse that contributes to the funding of the purchase or refinance payment may have a claim to some fraction of the title to the property.

Further, if there are community property debts incurred during the pendency of the marriage, that remain unpaid at your father's death, creditors may seek recovery from the community property first, and then to the separate property assets of both spouses, including this property. That does not address the respective rights or claims of your siblings or your father's heirs, which could be addressed in a revocable trust.

Your question suggests many issues may arise from this acquisition. I strongly advise your consultation with an experienced estate, will, and trust attorney about your understanding of the conveyance.

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