Legal Question in Real Estate Law in California

Re: Joint Tenants

It will transfer to you with a simple "Affidavit of Death of Joint Tenant" process. However, family members could try to sue you to undo the transfer if they feel they can prove it was done under undue influence or diminished capacity.

Re: Joint Tenants

I assume you mean "added my name to the title," not "to the deed." A deed is a one-use document, used to transfer title like a bank check transfers money, whereas title is more like the "bank account" - it is the lasting thing, where the value is stored.

In any case, I understand what you're asking. Here are some thoughts:

1. Most lawyers counsel most clients NOT to transfer property, especially property that has risen in value from the time it was acquired by the donor, by deed during the donor's lifetime. It is almost always a way to enrich the tax collector at the expense of family wealth. It's almost always far better to pass appreciated property by will, or even better because it avoids probate, by living trust. I do not prepare trusts, so I have nothing personal at stake in advising clients and LawGuru users NOT to put property in joint tenancy as an estate-planning or probate-avoidance measure. There are exceptions to this rule; the main one being if the property has decreased in value since it was first acquired. With appreciated property, the heir will be much better off in terms of capital-gains tax liability if the property is inherited rather than gifted during lifetime. There also may be a gift tax liability.

2. If the deed was properly drawn up and recorded, the property transfers to you by operation of law upon your mother's death. However, it is not uncommon for family members to question the transfer and the result in court, claiming undue influence, incompetence of the grantor, etc. etc.

3. Upon your mother's death, in order to remove her name from title, you will probably need to record an affidavit of death of joint tenant, attaching a certified copy of the death certificate and a sworn verification, along with a preliminary change of ownership form. The affidavit form can be purchased from a legal stationer, and the county recorder can provide the change of ownership document.

I hope your tax burdens are not extreme and that the circumstances do not provoke other family members who expected to inherit to file suit.

Re: Joint Tenants

I assume you mean "added my name to the title," not "to the deed." A deed is a one-use document, used to transfer title like a bank check transfers money, whereas title is more like the "bank account" - it is the lasting thing, where the value is stored.

In any case, I understand what you're asking. Here are some thoughts:

1. Most lawyers counsel most clients NOT to transfer property, especially property that has risen in value from the time it was acquired by the donor, by deed during the donor's lifetime. It is almost always a way to enrich the tax collector at the expense of family wealth. It's almost always far better to pass appreciated property by will, or even better because it avoids probate, by living trust. I do not prepare trusts, so I have nothing personal at stake in advising clients and LawGuru users NOT to put property in joint tenancy as an estate-planning or probate-avoidance measure. There are exceptions to this rule; the main one being if the property has decreased in value since it was first acquired. With appreciated property, the heir will be much better off in terms of capital-gains tax liability if the property is inherited rather than gifted during lifetime. There also may be a gift tax liability.

2. If the deed was properly drawn up and recorded, the property transfers to you by operation of law upon your mother's death. However, it is not uncommon for family members to question the transfer and the result in court, claiming undue influence, incompetence of the grantor, etc. etc.

3. Upon your mother's death, in order to remove her name from title, you will probably need to record an affidavit of death of joint tenant, attaching a certified copy of the death certificate and a sworn verification, along with a preliminary change of ownership form. The affidavit form can be purchased from a legal stationer, and the county recorder can provide the change of ownership document.

I hope your tax burdens are not extreme and that the circumstances do not provoke other family members who expected to inherit to file suit.

Re: Joint Tenants

Title to the property should pass automatically by operation of law upon her passing, however, that is dependent upon the deed having been properly prepared and recorded. It will not, however, prevent other family members from pursuing a set aside of that transfer if they feel that it was done illegally, through duress or other improper means.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.

Re: Joint Tenants

The surviving 'joint tenant' owns the property. However, if another heir could prove the deed transfer was fraudulent, by coercion, or the woman wasn't competent, it could be invalidated by court order.