Legal Question in Real Estate Law in California

Perhaps not. A deceased person's debts generally don't just evaporate upon their death. The estate must pay the debts before assets pass to heirs. However, your father's joint tenancy interest in the house was not an inheritance by your mother, and perhaps more significantly, the loan may have encumbered only your father's joint-tenancy interest. A lien that is secured only by the separate interest of one joint tenant expires and is extinguished on the death of the debtor/joint tenant, and the surviving joint tenant holds the title free of the lien. Clark v. Carter (1968) 265 Cal. App. 2d 291, 294; Hamel v. Gootkin (1962) 202 Cal. App. 2d. 27, 28, ; People v. Nogarr (1958) 164 Cal. App. 2d 591, 593. You or she should perhaps take the loan documents and maybe a title report to a local real-estate attorney to be sure, but if the lien affected only your father's share it is probably wiped out.

Mr. Whipple is correct that the security interest was wiped out by the death of the joint tenant who unilaterally encumbered his joint tenancy interest. However, there is also case law that says that if the loan was really made to the husband and wife jointly, the fact that only the husband signed the note and deed of trust and encumbered only his 1/2 interest would not allow the wife to avoid the debt. Also, if he had any other assets, those are still available to the creditor. So while the lien may be extinguished, she may not be off the hook for the debt at all. As Mr. Whipple said, she should take everything to a lawyer for a consultation.

I agree with Mr. Whipple and not Mr. McCormick. The homestead declaration is irrelevant. One of the key cases on this issue is Hamel v. Gootkin (2nd Dist. 1962) 202 Cal.App.2d 27. In that case, the Second District Court of Appeal held that an execution of a trust deed by one joint tenant did not terminate the joint tenancy, and upon the death of the executing joint tenant, the non-executing tenant's survivorship interest was not subject to the trust deeds.

I would be interested to read the case referred to in Mr. McCormick's citation, if he ever could provide it.