Is this community property?

[gfro]

What is the name of your state (only U.S. law)? CA. I have posted this question under probate but I thought people with knowledge of community property laws such as in a divorce situation might help me too. It's kind of a long winded story so - would you mind looking at my question in "Probate and Personal Representatives"? I would appreciate any thoughts on my situation.Thanks....

 

[mistoffolees]

What is the name of your state (only U.S. law)? CA. I have posted this question under probate but I thought people with knowledge of community property laws such as in a divorce situation might help me too. It's kind of a long winded story so - would you mind looking at my question in "Probate and Personal Representatives"? I would appreciate any thoughts on my situation.Thanks....

How about if you post a specific question without all the long-winded story that you think is needed. Just the facts and the question with no commentary.

 

[gfro]

OK. We bought a house 14 months ago. In his name only and for some reason , as a single man. We paid for it in full with money from joint bank accounts. 2 months later we got a home equity loan in both our names on it but my name is still not on title. Husband dies unexpectedly last march- no will. This house is all there is and I would like to file a spousal petition if I can (cheaper than full blown probate since I don't any money )to clear title to me. His side of the family are very supportive and will not object. I know this whole thing was stupid and was meant to make it easier on him- I had cancer. I miss him terribly but now I need to deal with this mess. How would this property be viewed in this case? I am posting here because I figure the fine nuances of community property law come up all the time in divorce. Any thoughts would be much appreciated.

 

[mistoffolees]

OK. We bought a house 14 months ago. In his name only and for some reason , as a single man. We paid for it in full with money from joint bank accounts. 2 months later we got a home equity loan in both our names on it but my name is still not on title. Husband dies unexpectedly last march- no will. This house is all there is and I would like to file a spousal petition if I can (cheaper than full blown probate since I don't any money )to clear title to me. His side of the family are very supportive and will not object. I know this whole thing was stupid and was meant to make it easier on him- I had cancer. I miss him terribly but now I need to deal with this mess. How would this property be viewed in this case? I am posting here because I figure the fine nuances of community property law come up all the time in divorce. Any thoughts would be much appreciated.

Community property in CA:
California Community Property FAQ's — DivorceNet

The home itself is separate property under the scenario you outlined. Increase in the home value is community property.

As I understand it, the house was paid for from money in a joint account, even though you were not married. Also, his side of the family has no objection to you keeping the house and they won't receive anything from it. Right?

Are there any children or other heirs? Is there a will? If there are none, then the house will eventually become yours because intestate succession means 100% of his separate property would go to you. If there are children, then you'd get only a portion of it by intestate succession. That doesn't mean that an attorney couldn't get a court determination that the house is yours, but simply that the DEFAULT would be for it to be split.

The good news is that I think you're not going to have any problem staying in the house during the probate process.

It would really be worth your while to talk with a California attorney because this case is complicated. Some will give an initial consultation for free and even if they won't, a quick consultation won't cost too much - but will let you know what your options are.

 

[gfro]

He was my husband of 28 years-

 

[mistoffolees]

He was my husband of 28 years-

Again, are there any children? That would be an issue if it has to go to intestate.

Your statement about 14 months is incorrect or misleading. You said he bought it as a single man. How could that be if you were married 28 years ago? Do you mean that he titled it with only his name even though you were married at the time?

If so, you were married when you bought the house, so it is community property, so your ownership shouldn't be in question.

If that interpretation is correct, I don't think you're going to have a problem, but you really need an attorney to work through it. If you truly have no money, then see if legal aid can help you. Otherwise, you may need to come up with some money unless you can find an attorney who will take it pro bono. I really doubt if it will cost you that much to have it resolved if all of the above information is correct.

 

[gfro]

no, no. I meant they put that after his name on the title but we thought nothing of it at the time. His grown son from a previous relationship is very supportive and will not object to a spousal petition- no one will. So you think a spousal petition would be out anyway? When you go to probate isn't there a set % of the property worth paid to the lawyer? thanks....

 

[mistoffolees]

no, no. I meant they put that after his name on the title but we thought nothing of it at the time. His grown son from a previous relationship is very supportive and will not object to a spousal petition- no one will. So you think a spousal petition would be out anyway? When you go to probate isn't there a set % of the property worth paid to the lawyer? thanks....

I don't know how a spousal petition works, so I can't answer that. CA has a good legal self-help program so that's where you would want to start.

My statement was simply that if you were married when you bought the house, it's going to be community property even if the title mistakenly said that he was single. You do have a copy of your marriage license, don't you?

Start with the legal self-help, but if there's any question at all, I really think you're better off consulting with an attorney.