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  1. #1
    Join Date
    Jul 2020
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    1

    Smile De221 - is It the Right Approach

    My question involves estate proceedings in the state of: California

    My stepdad died with no will. My mother is not on the deed. She used to be but when they refinanced, the loan got a better APR with her not on it. He has 2 daughters from a previous marriage which we have no communication with and neither did he. He also has 1 living brother.

    What type of details are to be included in section 7? Not the property but why the property should be passed to my mother. Thank you for your help.

  2. #2
    Join Date
    Mar 2013
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    18,008

    Default Re: De221 - is It the Right Approach

    The house is community property as is everything else your stepdad owned.

    Who is the court appointed representative of your stepdad's estate?

    Section 7 of what?

    Seems to me that your mother should be talking to a lawyer and not risking her future on (no offense) an amateur.

  3. #3
    Join Date
    Oct 2014
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    8,023

    Default Re: De221 - is It the Right Approach

    Quote Quoting adjusterjack
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    The house is community property as is everything else your stepdad owned.
    You don't know that. He may well have had something that was his separate property and not community property.

    Quote Quoting adjusterjack
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    Section 7 of what?
    Section 7 of California Court Form DE 221, as indicated in the title to the post.

    Quote Quoting cwswifey
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    My question involves estate proceedings in the state of: California

    What type of details are to be included in section 7? Not the property but why the property should be passed to my mother. Thank you for your help.
    Assuming, as is likely the case here, that the home was held between them as community property then since he died intestate and had two children it appears she succeeds to all his community property and ⅓ of all his separate property too under California's intestate succession law (which is the law that determines who gets what from the estate after a person dies without a will). Generally speaking that is the explanation needed to show why the home passes to her. But the exact language needed for it likely requires citing the particular provision of the intestate succession statute and reciting the facts that establish the property was community property. I suggest a consultation with a probate lawyer to get that part right.

  4. #4
    Join Date
    Jul 2018
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    2,431

    Default Re: De221 - is It the Right Approach

    Quote Quoting cwswifey
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    when they refinanced, the loan got a better APR with her not on it.
    How long ago did this occur? Do you know the source of the money used to pay the mortgage subsequent to the refi?


    Quote Quoting cwswifey
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    What type of details are to be included in section 7? Not the property but why the property should be passed to my mother.
    First of all, I assume you're talking about California Judicial Council form #DE-221. You should have been more clear about this.

    Second, I'm going to caution you about practicing law without a license. What you appear to be doing (providing substantive assistance to your mother in filling out legal documents) likely is a crime. Your mother needs to retain the services of an attorney.

    Third, it's likely that the petition form in question is not appropriate. For starters, it applies to the entire estate, not simply to a single piece of property, and we know nothing about what property your mother and stepfather owned. Nor do we know how long they've been married, whether they had a prenuptial or postnuptial agreement, etc.

    Even if we only look at the property that is the subject of the deed you mentioned, it's not necessarily the case that it's community property. In fact, based on what you told us, it very likely isn't. At the time of refinancing, your mother likely signed a deed that relinquished her entire interest in the property to your stepfather. Any rational lender would have required that since the property was put only in your stepfather's name and the loan was given only to him. At the point of purchase, the property was very likely 100% your stepfather's separate property, and you've told us nothing would indicate that this changed at any point. It is possible that, if community property money was used pay the mortgage, your mother might have acquired a community property interest, but that's very different from the property changing from separate to community property.

    While California's laws of intestate succession (Probate Code section 6401, et seq.) provides that a deceased spouse's interest in community property passes to the surviving spouse, the surviving spouse only receives 1/3 of the deceased spouse's separate property where the deceased spouse is also survived by more than one child.

    Your mother has a potentially complicated situation on her hands, and she needs to retain legal counsel.

    Quote Quoting adjusterjack
    View Post
    The house is community property as is everything else your stepdad owned.
    Come on, Jack, that's really just a lazy response. We don't know anything about "everything else [the OP's] stepdad owned," and the original post strongly indicates that the property in question is not community property.


    Quote Quoting adjusterjack
    View Post
    your mother should be talking to a lawyer and not risking her future on (no offense) an amateur.
    You got that one right.

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