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Husband and Wife as Joint tenants, wife died, title question

In 1987 we purchased a home in the state of California, county of San Diego, as "husband and wife as joint tenants."

She died intestate in 2001 and since she had no other assests or liabilities, I didn't probate her estate at that time.

Today I want to change the title on the home so as to place it into my revokable living trust.

However, if at all possible I don't want to loose half the federal tax basis on the property.

How do I change the title so as not to loose half the basis on the property or suffer other negative federal tax consequences?

Do I have to put my deceased wife's estate through an expensive probate so as to gain the assistance of a probate judge in making declarations and changing the title?

Or can I just record some forms with the county recorder?

smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi astrodanco!

Welcome to forums!

You have said that the you and your wife owned the property as joint tenants. If it was a joint tenancy with right to survivorship, then you have inherited the property directly after her death. Then there is no need to go for a probate. You can go to the county recorder and change the name.

Feel free to ask if you have further queries.

Sussane

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astrodanco's picture
astrodanco | Joined: November 10, 2008 01:56 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Unfortunately, the title doesn't say "right to survivorship", only "husband and wife as joint tenants." The title also doesn't say "as community property" despite our always treating it as such while she was alive.

I suspect that in order to preserve the surviving spouses tax basis upon death of the other spouse that we should have held the property as "husband and wife as community property."

This may be very important to my federal tax basis.

If "right to survivorship" is somehow magically implied for married couples in the state of California (?), then do I file an "Affidavit of Surviving Spouse Succeeding to Community Property" or an "Affidavit of Death of Joint Tenant" with the county recorder? I suspect that the former would preserve my federal tax basis (good) and the later would not (bad). Which would be the correct form?

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Niicss's picture
Niicss | Joined: October 3, 2005 11:54 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi astrodanco,

I think you should file the "Affidavit of Surviving Spouse Succeeding to Community Property". This will be a sort of declaration by a joint tenant that another joint tenant has died.

Thanks

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jheard's picture
jheard | Joined: December 12, 2007 08:20 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

You take sole title at the death of a joint tenant whether it says "right of survivorship" or not.

If your county has an Affidavit of Death of Joint Tenant form, file that. Most counties will simply accept filing of a death certificate.

As to tax, I don't know that law for sure, but it seems to me, this type of transfer should not trigger a change in basis. Check with your accountant.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

PHILA PA] MY WIFE DIED AND THE HOUSE IS IN
HER NAME HOW CAN I HAVE THAT CHANGE TO
MY NAME

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Welcome CARSON,

You can file an Affidavit of Heirship in the county recorder's office and transfer the property in your name.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My wife passed away. I am completing the affidavit. there is a question about my wife's value of personal and real estate porperty she owned when she died. Will that trigger any tax consequence?. Do I have to provide the exact amount? what if I do not. Thanks for your help.

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Caron's picture
Caron | Joined: July 19, 2005 08:37 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi billred,

Welcome to the forums.

There can be tax consequences if you inherit you wife's estate. You may have to pay the estate tax. It's best to consult an estate planning attorney in this regard.

If you do not provide the exact amount of estate, chances are it could be considered as fraud if discovered later on.

good luck

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My husband died two years ago and I am trying to [url=http://www.mortgagefit.com/refinance.html]refinance[/url] our home. The bank said they would not refinance until my husbands name was off the title to our house. I paid for probate and have a "Letters of Testamentary" issued by our County Clerk. My bank is having problems accepting that document as proof of title transfer. I am going to lose my house if I can't get a refi. What do I need to do now? I spent most of my money on the probate process.

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jerry's picture
jerry | Joined: October 17, 2005 03:24 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi C.J.,

This query has already been answered in the following page:
http://www.mortgagefit.com/propertytransfer/titlechange-refinance.html#7...

Thanks,

Jerry

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My husband recently passed away and we were listed on the Grant Deed as Husband and Wife ans Joint Tenants in California. I filed an Affidavit of Surviving Spouse Succeeding to Title to Community Property which I had recorded with the County Registrar's Office. My question is, is there any other paperwork I need to file or will that affidavit alone remove my late husband from the Title. Also does another Grant Deed need to be executed stating that I am the sole owner on title of the property?

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jenkin7's picture
jenkin7 | Joined: June 4, 2007 11:02 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Lola,

Since you were on the deed as joint tenants, filing an Affidavit of Surviving Spouse Succeeding to Title to Community Property would be enough to remove your deceased husband's name from the title. There's no need for a new grant deed to be executed.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My income only was used to refi house wife and i are getting divorce. Home is in foreclosure now. We are listed as joint tenants on deed. will this affect her credit

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi William!

Welcome to forums!

If the mortgage is in your wife's name, then the foreclosure will definitely effect her credit score and lower it by 250 points.

Feel free to ask if you have further queries.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

my husband died and im not on title or loan my home is in foreclosure bank doesnt want to work with me do i need to go to probate or what do i file

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My dad passed away in 2004. Wifes name was not on the house mortgage but is on the deed. Wife wants to pay the house off. Will the house go to the wife? Husband had a will and left everything to wife.

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Welcome,

To Gina,

If your name is not on the mortgage or on the title deed, then the foreclosure won't effect you. As far as probate is concerned, you need to contact and attorney.

To Alexis,

The wife can [url=http://www.mortgagefit.com/refinance.html]refinance[/url] the mortgage and pay off the mortgage dues. As the wife's name is on the property deed, she is one of the owners of the property. So the property will go to the wife. Moreover, you've mentioned that in his will, the husband has left everything to the wife. So the wife can probate the will and transfer the whole property in her name.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Who can complete the first part of this affidavit in California?

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi JStepp,

Your question is not very clear to me. If you want to file an affidavit of heirship, you should visit the county recorder's office and they would help you in filing it.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My husband passed away but the property is still under both our names. I will make a "Will" leaving everything I own to my 4 children. Is it necessary for me to have the property only under my name. or can I just leave the property as it is, under my husband's name and also mine as joint.. Will there be any problems in the future for my children? I don't want to go through the hastle of filing an Affidavit or hiring an attorney to remove my husband's name from the property unless I have to.

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Elvia!

Welcome to forums!

You will have to remove your deceased husband's name from the property deed. For that you would have to file an affidavit of heirship at the county recorder's office and transfer the property in your name. You can do it yourself but its always safe to take the help of an attorney. Once the property is transferred in your name, then you can draft a will.

Feel free to ask if you've further queries.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Please help me. My husband passed away two months ago. I was going to pay off the mortgage of the house that is under both our names and make a will giving it all in equal parts to my 4 children. Now I have just found out from the American embasy that my husband has a kid 2 years old outside of our marriage. That kid lives in another country but is an American citizent. I want to know if that kid (outside of marriage) is entitle to any part of the house or not. This has me very worried.

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Elvia,

If your husband was one of the owners of the property, then that child can claim a certain portion of the property as his heir. I would suggest you to contact an attorney and take his opinion in this regard.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

NEW YORK CITY.....
From where do i get the form "affidavit of death of joint tenant"? and after completing the form to whom do i give it too? Is the form given to the probate court?
Is the form Free since I see many online that you have to pay for.

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Cristhian!

Welcome to forums!

You will get the affidavit of heirship form from the county recorder's office. You will have to submit the form there itself in order to transfer the property in your name. Affidavit of heirship forms are state specific and they are available at the county recorder's office. Free forms are available online but it is always better to draft it from an attorney or get it from the county recorder.

Feel free to ask if you've further queries.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My Qustion is I own my house with my mother and the deed reads . . . Anna Marie Tapia a single woman and Lucy Delgado a widow woman as joint tenants. So, my question is she is 82 and does not have a living trust I have 1 sister and everyone says becareful when your mom passes she is going to fight you for the property. So, again if she does pass I was told I would have to quick claim her name off the deed and my sister would not have any rights unless there was a will or living trust. Is that true??

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Anna,

As there is no will or trust, your sister will be able to claim your mother's share of the property. Like you, she can declare herself as her heir and file an affidavit of heirship to claim the ownership of the property. You can ask your mother to quitclaim her portion of the property to you and reserve a life estate for herself. This will help her in remaining in the property until death. After her death, the life estate clause will become null and void and you would be able to claim the full ownership of the property.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My husband passed away a little over a year ago. By law, do I have to remove his name from the mortgage?

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi suzpet,

Your query has been answered in the given page:
http://www.mortgagefit.com/propertytransfer/husband-passedaway.html

Take a look at it. I hope it helps you.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I am asking this question for a friend?

Her husband dying:

1. Should she take her husband's name off the deed and transfer their home into her name only?

2. Should she retitle the automible and put it in her name?

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Cecil!

Welcome to forums!

Your query has been answered in the given page:
http://www.mortgagefit.com/propertytransfer/about35468.html#152793

Take a look at it. Hope it helps you.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

what is the time frame

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Eddie,

Your query is not clear to me. It would be better if you could explain your query in details.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I am in Texas---my Husband did a title change with a gift warranty deed to Husband and Wife--it states all of the parcel(home description) included--hoping if something happened to him i would be ok----as i am in Texas what is it----seperate property or community property---do i/he have right of survivorship??

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi minerva,

Texas is a community property state. As your name is mentioned on the property deed, you would be able to claim the property upon your husband's death. In case of a divorce, you can even claim a share from the equity in the property.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Before My wife passed we bought a house with my G.I. bill. She had me get a [url=http://www.mortgagefit.com/quitclaim-deed.html]quit claim deed[/url] when she went to remodel the house. We re-financed and now she has passed away. What rights do

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sara's picture
sara | Joined: July 5, 2006 03:16 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Harry,

If your name is mentioned on the property deed, then you will be considered as one of the owners of the property and you can stay in the property. However, if your name is not mentioned on the property deed, then you'll have to contact the county recorder's office and get the property transferred in your name. Once the property is transferred in your name, then you'll be able to stay in the property. You can even [url=http://www.mortgagefit.com/refinance.html]refinance[/url] the mortgage in your name and pay off the dues on time.

Take care.

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