- December 28, 1998
- All California Issuing Offices and Agents
- Affidavits - Death of Spouse
Affidavits - Death of Spouse (Community Property) have been utilized to avoid more expensive probate proceedings in a multitude of instances. The fact that the title to the real estate is held as community property does not automatically qualify it for treatment under Probate Code 13500 and following, nor does this eliminate concerns regarding death taxes as a potential "hidden" lien.
In order to utilize the Affidavit - Death of Spouse, the following must be in place:
1. The property must have been held as community property, not as joint tenancy, nor as separate property, nor as tenancy in common with the surviving spouse.
2. You must determine whether the decedent left a will.
3. The property must not be subject to will provisions which direct that the property be given to any person other than the surviving spouse.
You must also consider the possibility of death taxes, and remember that even though the value of the property that you are dealing with may be well below the minimum amount necessary to bring the estate within the realm of taxation, the triggering amount is the value of the whole estate and not the value of the single asset. Discreet inquiry is recommended.
If the property were held in joint tenancy, an Affidavit - Death of Joint Tenant would be appropriate.
If the Property was held as a tenancy in common, or was subject to a will that provides for distribution of the property to another person, a probate will be required unless the estate falls within other provisions for the settlement of small estates. This means that you must inquire whether a will exists and determine the size of the whole estate, not just the value of the real property in question.
Questions or comments should be directed to your Stewart Title Underwriter.
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