Last Person Standing Deed

Dear Len & Rosie,

When I married my husband we had separate homes. Mine was upside down and I wanted to keep it until it turned around but he wanted to get rid of it. I said I would do that if he would put me on the deed to his home in joint tenancy, which he did. We don’t have wills or a trust and I’ve been trying to get him to do one. He seems to think when he dies, half the house is mine and half belongs to his kids only. We’ve been married more than 14 years and I’ve spent lots of money repairing and fixing up this old house. He feels it’s all his and his daughters and I feel it’s ours and then divided equally between our five kids when we’re both gone. What does the law say?

Cheryl

Dear Cheryl

This is one of those times where you are probably better off keeping quiet about this and not creating a trust. We say this because if the title to the home remains as it is today and your husband dies before you, you will own the entire home.  A joint tenancy is a “last person standing” deed. When a joint tenant dies, the home is automatically owned by the surviving joint tenants.

Upon your husband’s death, all you will need to do to perfect title in your name alone is to record his Certificate of Death with an Affidavit of Death of Joint Tenant. You will also have to submit a Preliminary Change of Ownership Report to the county assessor to prevent a reassessment that could otherwise increase your property taxes. Joint tenancy property passes free of probate administration. Even if your husband had a will leaving his entire estate to his children instead of you, the home will be yours upon his death. 

But you have to keep an eye out. It is possible for joint tenants to “sever” a joint tenancy by recording a deed transferring their joint tenancy interests to themselves as tenants in common. Your husband could do this himself without your permission. If he does so, then his half of the home would be subject to probate upon his death and could pass to his children.

The good news is that your husband cannot sign a deed severing the joint tenancy and hand it over to his children for them to record after his death. Under California Civil Code section 683.2, a deed severing a joint tenancy has to be recorded before death, unless it was signed within three days of the date of death and recorded no later than seven days after the death.

If your husband does sever the joint tenancy, then his half will pass by his will if he has one. If he does not, then it gets complicated. Depending on how much money each of you put into the home, and when you did it, part of his share of the home may be community property passing to you, and part will be your husband’s separate property which will pass one-third to you and two-thirds among his children by intestate succession (the law about who gets what when someone dies without a will).

The smart thing to do is to create a trust that will take into account the desires of both of you. You and your husband could enter into an agreement by which you leave everything to one another on the first death, and when the survivor dies, half goes to your family and half goes to his. This way, you could have the security of a home to live in for the rest of your life, and your husband can rest knowing that eventually his children will get their just inheritance.

Len & Rosie

Video Wills in California, are they legal?

Dear Len & Rosie,

I have a friend who is dying of cancer. Doctors have given her two months to live. She has no will or living trust. She has no estate, but does have furniture. The furniture is not worth much, maybe $5,000. Can I create a video tape of her stating what she would like done with her belongings? 

She also asked me to have her cremated and her ashes scattered in the Pacific Ocean. She has no money so I was going to pay for all these services myself. I don’t mind cause she is a dear friend. 
I’m concerned if I do all this, could I get in trouble. She has no heirs whatsoever. She is an only child, never married and no children. She came over from France about 35 years ago. I wanted to get a lawyer out to her apartment, but it would cost me $1,000 and I need this money for her cremation. What should I do?

Lupe

Dear Lupe,

It’s always good to hear from people like you. You have been very generous to your friend. More often than not, the “friends” we hear about are looking after their own interests and act with more than a little bit of greed. Thank you for your kindness.

Video wills are not legal in California. Sometimes lawyers will videotape clients reading their wills or otherwise stating their wishes, but they do this when there’s a good chance of a lawsuit after their client’s death. Video cannot replace a written will, but a video can provide backup evidence that a person making a will has the mental capacity necessary to do so and isn’t a victim of undue influence.

Your friend ought to create a “holographic”, or handwritten will. She can simply write a letter in her own hand, stating that it’s her last will and testament and describing how she wants her personal possessions divided upon her death. She can name you or another trusted friend as the executor of her estate, but since her assets are worth so little, there will be no probate upon her death, and no executor will be appointed by the court. If she is unable to write out her wishes on her own, you or another person can do it for her, but then her will would have to be witnessed by two adults who are not inheriting any portion of the estate.

Alternatively, you can download a California Statutory Form Will from the State Bar web page at www.calbar.ca.gov. There’s a column on the left labeled “Quick Links”.  The last one points to the free will form. Or, just send an email to len@lentillem.com and we’ll email you the form.

As far as her cremation goes, it is very important that your friend sign an Advance Health Care Directive naming you as her agent for health care decisions. This is the only way that you will have the legal authority to arrange for the disposition of her remains after her death. Either get a form health care directive from your friend’s medical provider, or download one for free from www.lentillem.com.

Len & Rosie