Q. Hi County Law Librarian,
How do I put my house in my own name? The deed has my name and my late wife’s name on it “as husband and wife.” She died in 2007. She didn’t have a will, so I never filed anything. Now I need to refinance and the bank says I need to take her name off. I downloaded an “affidavit of surviving spouse” from your website, but the Recorder’s Office won’t take it because the language on the deed isn’t right. What do I do?
A. There is bad news, good news, and more bad news. The bad news is that you will need to get a court order from the probate court to change the deed. The good news is that you don’t need a full probate; there is an abbreviated process using a Spousal Property Petition. The bad news is that it will take a while, and unfortunately, it may hold up your refinancing.
California’s community property laws can affect the disposition of real estate after a spouse dies. When couples hold property “as husband and wife,” it is generally considered community property, owned equally by both spouses. When one spouse passes away, that person’s half goes to their heirs – who may not be the other spouse. If a spouse makes a will, they can leave their half to anyone they like. Because of this possibility, the probate court must issue an order determining ownership.
(If you and your wife had been listed “as husband and wife with rights of survivorship,” Cal. Civ. Code (CC) § 682.1, the property would immediately be yours without any need for probate. All you would need to do is file the Affidavit of Surviving Spouse you mentioned. Unfortunately, this picky language requirement makes a very big difference.)
Luckily, because this situation is common, California law created a simplified procedure to get your court order without needing to do a full probate case. (Cal. Probate Code (Prob. C.) § 13650.) To do this, you file a Spousal or Domestic Partner Property Petition (DE-221) form, a Spousal or Domestic Partner Property Order (DE-226) form, and related documentation. This petition can include real estate and any other community property, such as bank accounts, stocks, or other assets.
The court will schedule a hearing on your petition. You must let certain people, including any other heirs or beneficiaries, know about the hearing at least 15 days in advance. After the hearing, assuming all goes well, the judge will sign the order.
Record a certified copy of the signed order it at the County Recorder’s Office. Your title will then be clear, showing that you are the sole owner.
Unfortunately, this process will take at least 60 days in Sacramento, since the court must schedule a hearing, so it might not be in time for your current refinancing deal.
If you are a Sacramento County resident, you may be able to get assistance with these forms from the Civil Self-Help Center, located in the Law Library. For more information about the Civil Self-Help Center, visit our website at http://www.saclaw.org/pages/civil-self-help-center.aspx or give us a call at 916-874-6012.
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