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Did my father's home pass to me when he died? Do I have to go through probate?

San Marcos, CA |

My father died in 2009. His home was his only asset. I live in it and pay the mortage. It was homesteaded in California. I am his executer and only living heir. Does it have to go through probate court? It is worth around $360,000.00. $170,000.00 is owed to the mortgage company.

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Attorney answers 4


Probate would be necessary to pass title to you. I would consult with a probate attorney to determine how best to proceed. You can do this without an attorney, and your case might be one where you are willing to try, since you are harming only yourself if you get it wrong. You might be able to find an attorney who would simply consult with you when you need assistance and would not act as attorney for the estate. This might keep costs down somewhat. You can check with some of the county probate courts for information on the probate process to determine how comfortable you are in proceeding with this.

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.



Thank you, I appreciate your prompt response.


I generally agree with Mr. Frederick's advice, but in this instance I strongly advise you to get a lawyer and do it correctly. It's not going to cost a whole lot compared to the value of the house, and you won't have to worry down the line whether you have clear title shoud you decide to sell it.

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James P. Frederick

James P. Frederick


I actually agree with you. I think that ANY TIME probate is involved, a lawyer should be, as well. I certainly would use a lawyer to prepare the deed. The Asker's situation is one time when it is okay to *consider* less legal involvement, as long as a lawyer is used, as needed. I would not want the hassle of dealing with probate, myself. As with most things, you need to do a cost-benefit analysis.


TO properly transfer this property to your name from your father's, based on these facts, you will have to go through the probate process. The house has substantial value to it and you will have a lot of equity in the property. It would be money well spent to consult with a local probate attorney for assistance with the process and to be sure that it is properly handled. At the same time, you should do some estate planning for yourself to be sure that this is not a challenge for your loved ones in the future.

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While I agree with the other attorneys' answers, I'd like to add that there is generally a 3 year period in which you can file for an exclusion from real property tax reassessment after your father's death. Any further delay could increase your annual property taxes dramatically, especially if the house has appreciated since your father purchased it. I urge you to consult with a probate attorney right away.

Please call me for a free consultation at 925-362-4230. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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