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Elder Law Today Newsletter | June, 2012


Probates Involving the Home

A PROBATE is a Court procedure that facilitates distribution of assets to beneficiaries at the time of one’s death. Probates are complex and require that numerous forms be completed and regulations are followed before the Court will sign an order distributing assets to beneficiaries or heirs.

A probate with regard to a home can usually be avoided by preparing a Revocable Living Trust. In a Revocable Living Trust, title to the home would be transferred on the County Record from the owner to the owner as trustee. For instance, the deed to the home would be shown as from John Doe to John Doe as Trustee of the John Doe Revocable Living Trust dated January 15, 2012. The terms of the trust will state to whom the home will be distributed after John Doe’s death, and this transfer would be completed on the County Record without a probate.

Not everyone has placed his or her home in a Revocable Living Trust. In fact, many people may have only executed a will. A will may include the names of the beneficiaries of the home, but a probate will still be required. If there is no will, the home will be distributed to the “heirs at law” of the decedent through the Court process.

We are often asked: Why is a probate required for my deceased parent’s home when they had a will? The answer to this question is illustrated in the following scenario: Jane Doe’s father just passed away, and her father, and sole surviving parent, has a will that names her, the daughter, as the sole beneficiary of the home. Jane Doe wonders why title to her father’s home cannot just be transferred to her, the daughter, on the County Record without any Court involvement. In order to transfer title to Jane Doe, we would first look at the County Record on file at the County Recorder’s Office to determine how title to the home is held. In this case, the only person left on title to the home is the father, John Doe, and he is now deceased. The question now becomes: Who can sign a deed, which can be recorded, to transfer title to the home from John Doe, who is now deceased, to his daughter?

The answer is no one, which is why a probate is required.
A probate is necessary because a “chain of title” must be completed on the Record from the old owner to the new owner, or from the grantor to the grantee. If John Doe were still alive, and he wanted to transfer title of his home to his daughter, he would sign a grant deed for the home from Grantor: John Doe to Grantee: Jane Doe. This would complete the record title transfer to his daughter. In order to complete the title now that John Doe is deceased, a Probate Court Order, which will be recorded, will be required. Once the probate is completed, (probates can often take up to a year to complete) title to the home is transferred from John Doe to his daughter, Jane Doe. The daughter can now sign a deed and is now established as the owner of the home.

While the disposition of the home in the above scenario was possible to resolve to the daughter’s benefit, it is evident that if John Doe had placed his home in a Revocable Living Trust and named his daughter as the beneficiary, the lengthy and complex process of a probate could have been avoided.
PROBATE FEES: The fees for probating an estate are set forth in the California Probate Code. This fee is the same for the attorney for the estate and for the executor of the estate, and is set forth as follows: (1) 4% for the first $100,000; (2) 3% for the next $100,000; (3) 2% for the next $800,000; 1% for the next $9,000,000. If we probate an estate where the house has a fair market value of $500,000, the probate fee will be $13,000 for the executor and $13,000 for the attorney. Many times the executor, who is also a beneficiary of the estate, will waive their fee.

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