California is a Community Property state, and that can lead to assumptions about what happens to real estate when one spouse passes away. Much of it has to do with how the property was titled.
For example, if two people are married to each other, but only one of them is on the title to the house, a lengthy probate could still be required. To avoid probate, a Spousal Petition can be filed, so long as the property was purchased after the marriage. This would resolve the question of ownership in about two to four months, for the fraction of the cost of full probate.
If two people are marred to each other and the house was titled under Tenancy in Common, the deceased spouse could possibly have a will that designated their share of ownership to someone other than the surviving spouse. As you can imagine, this creates quite a mess when the surviving spouse is surprised by a will they didn’t know existed.
Tenancy in Common with Right of Survivorship and Joint Tenancy with Right of Survivorship are popular ways to hold title, as these simplify the probate process for the surviving spouse.
Most people are not thinking about the possibility of future probate when purchasing a home or getting married. This can lead to complications for a surviving spouse if something happens and the real estate title doesn’t name them and/or grant a survivorship right.
A title search is one of the first actions we perform when handling a probate sale. We also have title attorneys who can give us an opinion on the title within 48 hours. This enables us to have direction on the probate sale process at a very early stage and put the proper actions in motion.
This article is intended as general guideline for petitioners and personal representatives of the estate and is not meant as legal advice. We are a real estate brokerage company that specializes only in the sale of residential and commercial probate properties. Our company was founded by a 20+ year real estate veteran and attorney. While we are not acting as attorneys on your behalf, we can point you in the right direction and help you avoid costly mistakes that could hinder the probate. Let us help you today!
