tenants in common

[tingeytwo]

What is the name of your state?California I owned a home with husband as joint tenants and then we divorced 20 years ago and the house was listed as tenants in common in the divorce. He has passed recently and I want to sell the house. He had no will and has children from previous marriage. Does this sale have to go through probate even if all involved agree to the sale and understand 1/2 is mine and the other 1/2 is to be divided equally amongest his children?

[seniorjudge]

Originally Posted by tingeytwo

What is the name of your state?California I owned a home with husband as joint tenants and then we divorced 20 years ago and the house was listed as tenants in common in the divorce. He has passed recently and I want to sell the house. He had no will and has children from previous marriage. Does this sale have to go through probate even if all involved agree to the sale and understand 1/2 is mine and the other 1/2 is to be divided equally amongest his children?

Q: Does this sale have to go through probate?

A: Yes.

[JETX]

Originally Posted by tingeytwo

What is the name of your state?California I owned a home with husband as joint tenants and then we divorced 20 years ago and the house was listed as tenants in common in the divorce. He has passed recently and I want to sell the house. He had no will and has children from previous marriage. Does this sale have to go through probate even if all involved agree to the sale and understand 1/2 is mine and the other 1/2 is to be divided equally amongest his children?

Your 'tenants in common' title only gives you ownership of HALF of the house. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. Absent a valid will and since you are no longer married, you have NO rights to his estate (his half of the property).
His half ownership of the property is now owned by his estate.... and to be distributed per your state intestate laws.

California Intestate Succession Laws, no surviving spouse.
Any part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, passes as follows:
1. Decedent's descendants (e.g., children and grandchildren), per stirpes.
2. Decedent's surviving parent or parents equally.
3. Issue of decedent's parent or parents, split equally if they are all of the same degree of kinship to the decedent (e.g., all decedent's siblings survive) or split per stirpes if unequal (e.g., some siblings survive and some are dead but survived by children).
4. Decedent's surviving grandparent or grandparents equally.
5. Issue of decedent's grandparents, per stirpes.
6. Issue of a predeceased spouse. To be eligible to real property, the former spouse cannot predecease the decedent by more than 15 years. For personal property, the former spouse cannot predecease the decedent by more than 5 years.
7. Decedent's next of kin in equal degree. If a claim is made through two or more different ancestral lines, those who claim through the ancestor nearest to the decedent are preferred over others.