Legal Question in Real Estate Law in California

Re: Deed - Name Removal

Your living relative will have to convey all of his/her interest in the property to you by grant deed. It's a relatively simple process. He/she will have to sign the deed and have it notarized. Then it should be recorded with the recorder in the county in which the property is situated.

Be aware, though, that you might face higher property taxes. Talk to a tax advisor about that prospect before doing anything so that you can make an informed decision.

Re: Deed - Name Removal

If your living relative will not agree to sign a deed transferring their interests in the property, you will need to file a partition action. A partition action (in a nutshell) is a lawsuit in which you ask the court to determine each party's interest in the property, order the property sold, then divide the proceeds between the parties according to their interests.

You will, in all probability, need to hire an attorney whose practice emphasizes real estate and real estate litgation, and the process could be lenghty.

Re: Deed - Name Removal

First, a technicality. A "deed" is a single-use instrument used to transfer interests in real property. Once used, deeds can't be changed. So, what you should be inquiring about is how you go about removing an owner's or co-owner's name from TITLE.

The answer to the questions are then:

Title can be changed by the person who is giving up ownership or partial ownership (the "grantor") executing a deed to the person who is to obtain that ownership interest (the "grantee"). The deed is effective when filled out properly and delivered by the grantor to the grantee. As a final step, it is highly recommended that the deed be recorded. With that final step, the title is officially changed.

Proper execution of a deed requires the grantor to sign before a notary, who will acknowledge the signature. A deed that is not notarized is still effective as between the grantor and grantee, but cannot be recorded, and whenever a deed goes unrecorded, serious problems with title will arise in time.

In your case, your living relative is an essential player here because he or she must sign the deed. Although you call it "my home," the person or persons whose names show on title are considered to be the legal owners. You may have a beneficial interest or so-called equitable title, but until you can establish that you are entitled to legal title, your claim that it is "my home" doesn't have much legal significance. It's sort of like talking about "my inheritance" while the person you hope to inherit from is still alive.

The only persons needed to notarize a deed are the grantor (person giving up ownership) and the notary. The grantee need not be present.

How long is the process? If everyone is in agreement and you have the legal description of the property handy, here are some rough time estimates: (1) time required to fill out a deed form, 5 minutes; (2) time required for the notary to notarize the grantor's signature, 2 minutes; (3) time required to drive to the recorder's office - varies depending upon your starting point, but maybe 30 to 45 minutes in my county, including time to find a parking place. (4) Time standing in line waiting for the recorder's clerk to be available, then actually dealing with the clerk, about 10 minutes.

This assumes everyone is "ready to deal." If the living relative whose name is on your title objects to being taken off title, you can figure on adding about two years to the process for a lawsuit to quiet title.

There may be complications that I haven't addressed because you didn't ask about them; for example, tax issues (every transfer of property raises property tax, gift tax and capital-gains tax issues, some of which are trivial and some of which can be very serious). Also, if there are loans on the property in which the relative is a borrower or guarantor, the loan instruments may restrict his or her right to transfer an interest in the home.