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Elderlaw: 02/15/2014

Joint tenancy questions

Dear Len & Rosie,

I would like some advice. My friend and I bought a home 24 years ago. We are listed as half owners on the Deed of Trust. Last October, my friend passed away. We never had the home listed as joint tenants on the deed. Am I going to have a problem having the title changed into my name only? My friend didn’t have a will or any children.

Dear Cathy,

First of all, don’t assume the home was not in joint tenancy. In your email, you referred to the Deed of Trust. This isn’t the deed to your home. Instead, a Deed of Trust is your mortgage lender’s recorded lien on your home that gives your lender the right to have your home sold in a foreclosure if you default in your loan payments.

The deed you need to examine should be a “Grant Deed,” or sometimes a “Corporation Grant Deed” or “Individual Grant Deed.” If you do not have this document, you can obtain a copy from your local County Recorder for a very small fee. Do not bother paying $20 or $25 for a certified copy. You’ll never need one. Just get a copy.

If the deed says, “Cathy and Friend, as Joint Tenants”, or “Cathy and Friend, as Joint Tenants with Right of Survivorship” then it’s easy. All you need to do is to record your friend’s certificate of death with an Affidavit of Death of Joint Tenant. The property won’t even be reassessed under Proposition 13, because there’s a transfer exemption for transfers on death between cohabitants (you may need a lawyer’s help for this).

If the deed doesn’t say it’s a Joint Tenancy, then you have serious problems. If it’s not a Joint Tenancy, it’s a Tenancy in Common, and that means your friend’s half of the home belongs to his or her probate estate. Since your friend died without a will, his or her half of the home passes by “intestate succession,” the law about who gets what when someone dies without a will. The bad news is that’s not you, because you and your friend were not married or registered as domestic partners with the California Secretary of State. This means your friend’s family, even if they are distant relatives, are entitled to inherit your friend’s half of your home.

If this is the case, then your best bet may be to lie low and hope that nobody notices you’re not on title to the entire property. You will have to deal with this if you ever try to sell or borrow against the property, but you don’t have a duty to deal with the situation now. What you really ought to do is to review the deed to the home with a trusts and estates attorney.

Here’s the lesson for the rest of our readers: You need an estate plan, even if it’s a simple will, because if you don’t, you may leave a giant mess behind that your loved ones may not be able to clean up.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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