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Law and Real Estate

August 18, 1985|SHALOM KATZ and BUSTER SUSSMAN | Katz is an attorney; Sussman is a free-lance writer. and

Law is a lot like wrestling.

In both you've got to apply the right hold or, depending on how you stand, the right variation of the right hold.

We reported recently on the two basic ways to hold title to your home--by community property or by joint tenancy.

Readers wrote in their variations of these holds.

Attorney Michael V. Vollmer noted that while it's true that holding title by community property means that your estate would normally go through probate, it isn't always necessarily so.

To avoid probate, a surviving spouse can file, at the Hall of Records, an affidavit, "Death of Community Property Owner," together with a certified copy of the death certificate, pay a small fee, wait 40 days, and--presto! No probate.

Now, let's suppose you hold title as joint tenants.

Usually, there would be no probate, but there might be a larger capital gains tax when the home is sold.

However, as attorney Donald P. Silver points out, if you really intended to hold title as community property and had it listed as joint tenancy through error or bad advice--the survivor can file a petition with the probate court to have it confirmed as community property.

Obviously, you'd be better off taking care of this change now, or at least by making a written agreement saying you both intended it to be community property.

Moral: Nothing is as simple--or complex--as it looks.

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