Legal Question in Wills and Trusts in California
My mother passed away 3 years ago and my younger brother has been living in her home. She was the sole owner and still is, according to the deed. The house is going up for auction in about a month due to unpaid taxes. I know this should have been taken care of sooner but it wasn't, so now I'm stuck in a tough spot. We can get a hard cash loan against the house to pay the back taxes but the name on the title needs to be changed. This house was my mom's only asset, excluding a $3,000 car and the house is appraised by the San Bernardino Treasurer for $80k. According to an article an Nolo(The out-of-court affidavit procedure is available in California if:
1. The value of the estate is no more than $150,000, as calculated using exclusions listed in "Simplified Court Procedures," below. There is a 40-day waiting period. Cal. Prob. Code �� 13050, 13100)
Does this mean I can write an affidavit and submit it to the San Bernardino Courthouse and avoid probate(and hopefully get the title changed in time to get a loan to pay the back taxes?) I did some research on the waiting period and it appears to start from the time of her death, so it's not an issue unless my research was incorrect.
Thank you in advance.
2 Answers from Attorneys
No, I do not believe you can simply transfer the house using an Affidavit - Small Estate. You will need to file a Petition to Determine Succession to Real Estate with the county probate court. The Judge will need to approve the transfer before it becomes legal. When is the tax sale? Can you pay off the taxes at the sale?
This is complicated and I encourage you to consult with a local real estate or estate planning attorney for assistance. The attorney may be able to have an emergency or ex parte hearing on the matter, assuming that only you and your brother are the legal heirs to your mother's estate.
I agree with Scott. You are looking at the probate code provisions related to personal property, not real estate. You might check 13200, but the value limits are much lower. I suspect you need a probate, but it would be necessary to see the deed.
It may be possible to get a loan, but you must move quickly. The county does not provide much flexibility, as it takes a long time to get tho the tax sale position.
Please engage counsel to help you work through this.
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