Routine Deed Transfer Turns into Probate for Oakland Homeowner
“Jason” came in to our Oakland office to change the title on a deed–a routine procedure that sometimes can be completed in a single day. Jason co-owned a home in the Oakland hills, and his name was on the deed along with those of his father and uncle, both deceased. Jason was considering selling the property, and he knew he would need a deed showing that he was the sole owner.
The status of Jason’s deed would be determined by the kind of ownership that had been set up in the original deed. We needed to pull the deed to find out whether they were joint tenants with rights of survivorship or tenants in common.
Joint tenants with rights of survivorship. If the names of the three owners are followed by the words “joint with rights of survivorship”, Jason would have to obtain certified death certificates on his deceased co-owners by going to the deeds office and filing an affidavit to remove their names from the deed.
Tenants in common. If their names are followed by the words “tenants in common”, Jason's deed change suddenly got a whole lot harder. In order to change the deed, both his father’s and uncle’s property needed to go through Probate.
What happens to the property when one of the owners dies?
A key difference between these two types of shared ownership is what happens to the property when one of the owners dies. When a property is owned by joint tenants with survivorship, the interest of a deceased owner automatically gets transferred to the surviving owners. For example, if four joint tenants own a house and one of them dies, each of the three remaining joint tenants ends up with a one-third share of the property. This is called the right of survivorship.
If, on the other hand, the owners were tenants in common, the deceased person’s shares pass to their heirs through a Will or Probate.
The three owners were tenants in common
Unfortunately for Jason, the deed showed that the three property owners were tenants in common. Rather than executing a relatively simple deed transfer, Jason now needed to Probate both his father’s and uncle’s share of the property. Unfortunately, we see a fair number of these kinds of situations. If the family had changed their ownership from tenants in common to right of survivorship while his uncle and father were still alive, the deed change would have been a routine process.
A few more details about deeds
Deeds always contain the names of the old and new owners, a legal description of the property and the signature of the person transferring the property.
Having an updated title is a critical to buying or selling real property.
Understanding joint ownership is especially important for married couples
If you’re married and have other heirs besides your spouse, such as children from a former marriage, then your spouse may not automatically inherit the property you want him/her to have. On the other hand, your spouse may become the beneficiary of property that you intended to go to your children. Updating accounts and deeds is a relatively simple process that will ensure your beneficiary designations reflect your current preferences.
A final note on Probate
Probate is a growing service for California Document Preparers. If it’s uncontested, we assist you through the entire process—all for one flat fee of $4,500.