Legal Question in Real Estate Law in California

Re: Community Property with right of survivorship

First, you have some of your terminology and concepts mixed up. The legal term you're thinking of is probably "community property with right of survivorship." Also, one does not really "file" a form of holding a real-property interest. True, recording a deed is in a sense "filing" it, but the way property is held depends upon the language inserted in the deed at the time it is prepared and delivered.......married people usually "take" their real property as "community property" or "community property with right of survivorship," but sometimes they take it in other forms of holding, such as joint tenancy or tenancy in common.

Now, to answer the question. When married couples take property as community property with the right of survivorship, neither can pass any interest in the property to an heir by will or trust. Upon the death of the first spouse, the property becomes the sole property of the surviving spouse. (I suppose there is an exception for simultaneous death).

In order to accomplish what your sister wishes, the couple should take title as community property or as tenants in common, and avoid taking title as community property with right of survivorship or joint tenancy.

She or they should also consult with an attorney who has experience in estate planning to set up wills and trusts to assure both partners wishes will be carried out with the fewest adverse tax and probate problems.