Dear Len & Rosie, My mother passed away January 2007 at the age of 91. Her home has her name and my name as tenants in common with full rights of survivorship.

We have lived in this home together. It was the home where I was raised  and my husband and I returned 21 years ago to live with her and assist in her care giving. We all had a wonderful relationship together. Should I remove her name from the property tax bill and have my name added?

Will my taxes go up? It has been a long year missing my mother and I suppose it is now time to find out what I should do with the name change on the property tax bill and deed.

Therese

Dear Therese,

You shouldn’t have to worry about property tax. Under Proposition 58, your mother may transfer to her children her home, and $1 million of other real property in California, without triggering a property tax reassessment due to the parent-to-child transfer reassessment exclusion.

If you continue to reside in your home, your property tax won’t be any different.

It’s a bit surprising that you haven’t heard from your county assessor by now. The county vital statistics office, which handles death certificates, should have notified the assessor of your mother’s death.

Most assessors would have responded to this by mailing you questionnaires and other property tax forms.

The bad news is that your description of the state of title to your mother’s property, “tenants in common with full rights of survivorship” doesn’t make sense.

If you are lucky, the deed names you and your mother as “joint tenants” or “joint tenants with right of survivorship.” If this is the case all you need to do to remove your mother's name from the property is to record your mother’s death certificate attached to an affidavit of death at the County Recorder’s office.

But if the title to the property is held as “tenants in common,” then your mother’s half of the home belongs to her probate estate and is subject to probate. You’ll have to hire a lawyer to probate the estate, which will cost much more money than merely recording her death certificate. There could be other complications as well, if you are not the only child and your mother didn’t make a will leaving you her estate, or at least her home.

If the deed really does read the way you said then you definitely need a lawyer. “Tenants in common’ and “right of survivorship” don’t go together. That would make your mother’s deed ambiguous, and title companies would likely refuse to issue title insurance if you were to sell or borrow against the property. Either probating your mother’s half of the home, or petitioning the court to reform the deed will likely be necessary.

It’s certainly possible to prepare your own deeds, wills, and even trusts, but it's very easy to make mistakes. It’s not just filling out forms. You need to see a lawyer to review your mother’s deed and determine what you need to do to clear title to the property.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at  846 Broadway, Sonoma, CA 95476, 996-4505, or at www.lentillem.com. Len also answers legal questions each  weekday, noon-12:45 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.