Legal Question in Wills and Trusts in California

You do have to notify the county of his death [they may have that form on line], which will result in their reassessing his half and an increased tax bill. Be sure they only increase his half.

You probably do not legally have to advice the lender but it is nicer to do so .

Mr. Shers is absolutely wrong on all counts. The county is right that they don't care if you file or not. They are just record keepers of whatever records property owners want there to be a public record of. So you do not have to notify the county. Also, there will be no reassessment once you do. You do, however, have to notify the lender once you notify the county, although it would probably not be a problem if you didn't. With that said, even though there is no requirement that you record any notice of your father's death, once your mother passes away, it will be a lot simpler to deal with the property if you have already handled the effect of your father's passing on title. If your mother ever wants to sell it before she passes, it would absolutely have to be dealt with. So may as well do it onw. What you do is record an Affidavit of Death of Joint Tenant. It is a fairly standard form. You should be able to find one on the web. If you can't, email me and I'll see what I can find. You attach a certified copy of the death certificate. If it is only in Spanish, you may have to attach a certified translation too (check with the county on this, since that is one thing they will care about). Once that is recorded, the county record will be that your mother owns the property as her sole property. The reason Shers is wrong about the reassessment is that inter-spousal transfers, by deed or death, are exempt from reasessment. They are also exempt from documentary transfer tax. You will need to file a local county form with the recording of the Affidavit of Death of Joint Tenant to claim those exemptions. Again, ask the Recorder's office about their local forms. As for the lender, there is most likely a clause in your parents loan documents requiring notice of any change in title to the property. So informing the lender once you record the Affidavit is required. Most lenders these days have automatic sweeps of county records to catch title changes anyway, which is why I say it's probably a no harm no foul if you don't give notice, but better to dot the i's and cross the t's. It should have no effect on the loan as long as your mother continues to pay as required.

Ben, I am an estate planning attorney in San Diego. There are a number of things that should be done, among them is filing the affidavit death of joint tenant. If you don't file additional paperwork with it, the house could be reassessed for property tax purposes. Your mother should also consider setting up a living trust, because if she passes away, then the house will go through probate. If you would like some assistance with these matters, please contact my office.

I concur with Mr. McCormick. Just to clarify your mother is not required to "notify" the Recorder's office, although she should record the Affidavit to clear title, as he said. But she does have to "notify" the Assessor's office of the change of title and to avoid reassessment, and this is done with a Preliminary Change of Ownership report that accompanies the Affidavit of Death of Joint Tenant and will be forwarded from the Recorder to the Assessor's office (sometimes they are a combined office, but they have separate functions.)

Ben, I am sorry for your loss. I agree with Mr. McCormick, Mr. Webb and Ms. Cusack. I have attached a link with a form for filing an Affidavit of Death of Joint Tenant. As Ms. Cusack has stated, the purpose of the Affidavit of Death of Joint Tenant is for your mother to establish title in her own name. Your mother's signature needs to be notarized, too. You need to attach a copy of the death certificate to the form. As Mr. McCormack has stated, transfers between spouses are exempt from reassessment, so there will be no reassessment for taxes purposes, here. You do also need to file the Preliminary Change of Ownership form, as well. I have attached the link for this form, too. Its important to fill both of these forms out correctly.

The mortgage company will eventually become aware of the death of your father. You can notify them, if you want to . Since your parents owned the property jointly, presumably the loan is in both names. So, as long as the payments continue to be made, there should not be any problems with the mortgage.

Please let me know if you need any additional assistance. My email is: [email protected].

http://arcc.co.san-diego.ca.us/docs/PCOR.pdf (preliminary change of ownership)

http://www.saclaw.lib.ca.us/Uploads/files/forms/AffidavitDeathJointTenant_08.pdf