Legal Question in Real Estate Law in California

In 2004, my wife had very poor credit

I bought a condo in Poway, Ca as my sole and separate property. The first and second mortgages are in my name alone.

At that point, I did a Quitclaim deed which changed the title to "husband and wife as community property". The mortgages remain in my name alone. Should I ask the mortgage companies to add my wife to the loans? If I were to die, I would like the 1099-int forms sent out by the mortgage companies to have both names.

Also, under the definition of community property, it says "either spouse has the right to dispose of one half of the property or will it to another party" Does that mean that If I were to die, my wife would not automatically become sole owner? thanks

Asked on 6/22/13, 11:05 am

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach

You can ask the lender to add your wife's name, but I doubt they would do it. If you die first, your wife would still be "subject to" the existing loan payments secured by a deed of trust. (Note that I use the term "deed of trust" because no one in this state uses a mortgage. A mortgage is actually a different instrument altogether.)

Under the laws of intestate succession, the decedent's share of community property passes to the surviving spouse in the absence of a will. (Prob. Code, sect. 6401, subd. (a).) The other half already belongs to the surviving spouse. (Prob. Code, sect. 100.)

But if there is a valid will, the laws of intestate succession don't apply. Does that make sense?

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Answered on 6/23/13, 5:57 pm


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