Legal Question in Wills and Trusts in California

Because of how your father took title, the note sounds like it has to be probated. It is considered your father's separate property and it is not titled in the name of his trust. Unless his Will gives everything to his wife rather than directly to his trust, then a spousal property petition may be available, but it is still a court action. Also, there may be sufficient facts to file an 850 petition to have the court determine that the note is an asset of the trust, but you have to have an attorney review everything to give you that opinion.

I agree with Ms. Rouse. The note can be inherited, but it still must pass through probate and subject to probate law. The deed of trust follows the note, as a matter of law.

There is a way to avoid probate if you can get a California probate referee to valuevthe note for less than the face amount, I.e. It is subordinate to a large first TD, or the market value of the property itself is depressed.