Legal Question in Wills and Trusts in California

Re: Does this require Probate?

Sounds like you need to do a spousal property petition. This is a petition to the probate court and is a form of a mini-probate; not a full probate. Should take about 6 weeks from start to finish and cost between $1,500-2,000 in Court costs and attorney fees. Once that is done mom can do a deed to add you as a joint tenant. Would be happy to help if you would like to hire an attorney. Good luck.

Re: Does this require Probate?

If the deed didn't show joint tenancy or community property, then it is deemed to be tenants in common. You really do not need to open a formal probate, but will need to petition the court to have your father's name removed. Your mother can add your name later. There should be no change in property taxes, nor any immediate gift tax. It is a fairly quick process, and less expensive than probate.

There could be some reasons why you would not want to transfer title into your name as a joint tenant with your mother, including later capital gains taxes.

Re: Does this require Probate?

It is a very simple process but at the same time it has substantial consequences. Everything we do in estate planning is tax driven. Gift tax, death tax, income tax, and an act like putting you on the property could have substantial, detrimental, negative tax effects of which you are not aware. Please don't be stupid, please don't fill out the forms, please don't just record them. Go to an estate planning/probate attorney with your mother and have him or her give you good advice after you have told them all of the facts in this situation. There are numerous alternatives which are far better than just putting you on title. Please, please do not put the property in joint tenancy, if someone recommends that most likly they don't know what they are doing or make them show you how it won't negitivly effect you tak wise. By the way, taking your father off title is a simple procedure in the cords which has a substantial beneficial effect, tax wise to your mother. If people would think and get proper advice before they did it themselves, I would not be in business because I would not have to cure all the screwup's the people have done.i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.

Re: Does this require Probate?

Sorry to hear of your loss.

If the property is held as tenants in common, then the only way to get it out of your father's name is to go through a probate proceeding. The process can be completed in as little as 5 months but if not handled properly, can take years. The fees are a cost of the estate and are levied according to the value of the property. Unless the house is worth a bundle, there should only be positive tax consequences associated with removing your father.

As for adding you to title, review this with the probate attorney. There are many better ways to deal with the title issues pre-death.

Good luck and if we can be of assistance, please call.

Re: Does this require Probate?

From the facts, it sounds like a "spousal property petition" filed in probate court would transfer your father's interest to your mother--this is simpler and shorter than a full probate, so should cost less than a full probate. Attorneys will usually quote an hourly or flat-rate fee for this, and should be able to give you a close estimate if not an exact fee.

As for adding your name to the property, I would advise against it for many reasons, as there are better ways to make sure the property gets to you after your mother's death without probate.