Legal Question in Real Estate Law in California

If two of four siblings are on parents property deeds does that mean the other two siblings are out....or are there other avenues to pursue?


Asked on 8/23/10, 8:25 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

First, it is better to think of being an owner or part owner of real property as being "on title," rather than "on the deed." One reason for this is that if three people own property, the ownership interests may have been created by three different deeds, with three different dates, and executed by three different grantors -- or there may be no deeds at all, if the property was acquired by inheritance, for example; or by marriage; or by court decree after adverse possession. "Title" is kind of an abstract concept, but basically it means "legal ownership as reflected in the official records." A deed is an instrument used to bring about changes in title.

I'm going to guess at the facts a bit. It sounds as though your parents own real property in California and that two of four siblings are shown on the parents' title as having some co-ownership interest. This could be as tenants in common, or as joint tenants, or possibly as remaindermen after a life tenancy. You are wondering if the absence of the names of the other two means those two will not inherit any interest in the property.

The answer seems to be that it is more likely than not that the two siblings not shown as being "on title" in the county recorder's records would not inherit any interest in the property if the parents were to pass away. However, there are scenarios under which they would receive a fractional interest. It depends upon how title is now held (joint tenancy and tenancy in common produces different results), whether the parents have wills or trusts, and several other factors.

A starting point in developing a better answer would have to be a careful re-evaluation of the current status of title. If there is a trust, the title search would probably disclose that fact, but whether or not there is a will would require asking - and a person can always change their will before death.

Some parents might put their elder children, or their male children, or their children who decide to stay close to home, on title to family property, and then pass other assets to the remaining siblings through their wills. So, not being on title now is not necessarily indicative of an intention to disinherit,

Finally, I should note that sometimes parents make children joint tenants in their real estate because someone has told them that will avoid probate. This it does, but it also deprives the children of an important tax advantage - a "step-up in basis" - which occurs when property is inherited by will or trust, and which reduces the capital gains tax due when appreciated property is eventually sold. Use of a "living trust" is usually the best way to pass property from generation to generation, as trusts both get the step-up and bypass probate.

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Answered on 8/28/10, 10:29 am
Anthony Roach Law Office of Anthony A. Roach

It means two of the children are not on title. Providing you any more answers without follow up questions to you would be pure speculation.

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Answered on 8/28/10, 12:29 pm


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