Legal Question in Real Estate Law in California

Re: transfer of ownership

your question is all screwed up --- what do you mean by partener if you were not the husband, wife, child or on title with the decedent or not named in a will, trust or valid testimentry doument you probably are sol unless there is more to the facts which i assume may be there but i don;t know of

Re: transfer of ownership

First you have to understand clearly what a tenancy in common means. Tenancy in common is the generic way property is co-owned by two or more persons. There is no right of survivorship as there (usually) is with a joint tenancy. Each tenant in common has an undivided ownership and right of simultaneous possession with each other tenant in common. A tenant in common can deal with his or her interest separately, and upon the tenant's death, the tenant's interest passes to his or her heirs (by trust, will, or the laws of intestate succession).

Therefore, if A, B and C own Blackacre as tenants in common, each with a 1/3 interest, and A dies, A's 1/3 interest passes to A's heirs. If A had no will, his heirs are determined by the law of intestate succession.

In no case would the 1/3 interest be unclaimed, nor would B or C have any right to A's former 1/3 interest unless, of course, they were also A's heirs or relatives entitled to inherit.

Title to property held by tenancy in common can be passed in all the ways that a fee simple can be passed, i.e. by deed, will, testamentary trust, etc. Do not confuse the mechanism of transfer (i.e., the deed or the will) with the law determining who the transferee is (i.e. the laws of inheritance, the principle of grantor and grantee to a deed, etc.).

The simple answer to your question about how to transfer a part ownership as tenant in common without going through probate is to sell it before you die. That totally avoid probate.

If however the tenant in common dies before selling, whether his 1/3 interest in Blackacre must go through probate or not is determined by the same rules that determine whether any estate must go through probate or not; it is not dependent upon his having held property as a tenant in common. The probate court will not ask "Did the deceased own any property as a tenant in common?" Instead, it will ask more general questions such as "What is the value of the estate?" "Is there a trust?" "Is there a will?" "Is there any real property?" etc.

The mortgage has no effect on ownership, title, inheritance, etc. If as you say both cotenants were "on the mortgage," the obligation to pay it was probably joint and several, meaning the mortgage holder can collect from both, or either, at the mortgage man's option.

And nine years have passed? It is high time to retail a lawyer to straighten this mess out. As time passes, certain obligations are slipping under the statute of limitations so they cannot be rectified. It will be necessary to determine who inherited the decedent's interest, then deal with the heirs. These heris will be entitled to a 1/2 (perhaps) interest, less an adjustment for necessary expenses (mortgage, taxes) paid by the other owner, after adjustment for net rents (if any) earned and retained by the owner in possession. It's real, real complicated now, and you will need a wizard to untangle the mess.

Re: transfer of ownership

Sorry, at this point the only way to make the transfer is by probate. The property interest does not count as unclaimed property. Instead, the tenant-in-common interest will pass to the partner's heirs at law (e.g. children, grandchildren, parents, siblings, etc. depending on circumstances). See a local probate attorney for further assistance.

Re: transfer of ownership

It appears that the deceased's interest will have to be probated. There will have to be an adjustment for necessary expenses like mortgage and taxes paid by the other owner and net rents if any received.

You have a complicated situation. You should contact an experienced probate attorney.

If would like a free initial consultation, please e-mail me with contact information or call me at (818) 991-6664. I have over twenty-five years experience.

Good luck and thank you for your inquiry.