Legal Question in Real Estate Law in California

Re: adding child's name to surviving parent's property title

Unless mom and dad were joint tenants, the property would have to be probated now to 'get her name off'. If it was in joint tenancy, then a Quitclaim to make him a joint tenant with the dad works.

Re: adding child's name to surviving parent's property title

As you know, this would be a two-step process, name removal first, then name addition.

Removal of an owner from title after death can happen in two main ways. If the co-owners were joint tenants or owned as community property with the right of survivorship, the ownership interest passes to the surviving joint tenant or spouse "automatically" and correcting the public record involves (usually) recording a notarized affidavit of death of joint tenant and a certified copy of the death certificate. If title were held in any other way, a probate process is probably required. There are exemptions for small estates, but those with real estate usually don't qualify, so the executor or administrator must go to court and carry out the process you're trying to avoid.

(The above discussion does not cover ownership of the property by the parents' living trust or trusts. A trust gets a new trustee upon the original trustee's death, but the property does not really change hands; the trust holds legal title both before and after the death).

OK, once the deceased co-owner's name is no longer on current title, the new sole owner is free to add another owner by deed. Your probate-avoidance concept is to use joint tenancy, and a joint tenancy can be created by deed, and the deed can be either a quitclaim or a grant deed, but particular wording is required: "from F to F and D as joint tenants" or the equivalent. A title company can draw documents and provide title insurance.

Finally, let me close by saying that while joint tenancy avoids probate, it does not result in the lowest capital-gains tax down the road. A living trust avoids both probate and a significant part of the capital gains or gift tax in most cases. Wise families pass along property from generation to generation while paying the least possible to lawyers and tax collectors by advance planning relying heavily on living trusts. Before doing any joint-tenancy deals, check out a living trust. I don't do them, so this is not a sales pitch.