Legal Question in Real Estate Law in California

Title, deed, will

CA Property purchased in 1977.

Down payment was gift from parents.

Title and Credit was applied in children's names:

A - daughter/husband

B - Son/wife

C - daughter

B carried the credit through the years, until present time (wife's employee loan), and lived in the property, paying mortgage, utilities, etc. until parents migrated to US. Parents lived in property from then forward, paying mortgage, etc.

Parents passed away in Dec. 2005, and last willed the property to ABC and all of the grandchildren.

#1. Did Parent have the legal right to will the property?

#2. Since A, never, ever had any contribution to the property, do they have any legal rights?

#3. Who is the owner of the property?

Asked on 3/27/06, 5:49 pm

2 Answers from Attorneys


Re: Title, deed, will

The question, as posed, doesn't make a lot of sense, so let me try my best to answer it.

Are you saying that the title was never in the parents' names? You say that the title "and credit" were "applied" in the childrens' names. Not sure what that means. One doesn't "apply" for title. One is granted title. By "credit", I assume you mean that the children are the responsible parties on the mortgage.

At any rate, if the parents are not on title, then the parents had nothing to "will" away.

If A, B and C are on title, then they are the owners. Either would have a right to partition, however, and in an action for partition, the court would apportion and/or adjust each owner's share of the proceeds, according to each owner's contributions to the property.

This can be a complicated area of the law. Partition actions should be handled by an attorney.

Good luck.

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Answered on 3/27/06, 6:11 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Title, deed, will

Your facts are not clearly stated. Here's how I interpret them:

In 1977, A, B and C, who are siblings, purchased a house as cotenants (probably as tenants in common, but possibly as joint tenants), using money provided to them by their parents as a down payment. It looks as though you're saying that A, a daughter, got her share of the down-payment money as a gift from her father; that B, a son, got his share from mom (married at the time to father); and that C, another daughter, was placed on title but didn't receive any gift of money and therefore didn't participate in making the down payment, perhaps because she was a minor at the time.

If these facts are correct (and that's a big IF), I would say--

#1 - Parents had no right to will the property;

#2 - The rights of A, B and C will depend on what is shown on the public records at the County Recorder's office. If A is "on the deed," i.e., shown as a co-owner, that will probably stand up in court. Same for B and C.

#3. Ownership is PROBABLY as shown in the public records. Recorded deeds, as reflected in the records of the County Recorder, are presumed to show ownership of legal title. Sometimes, the presumption raised by recorded deeds can be rebutted. One example is adverse possession, where legal ownership can be obtained against the owner of record through five years of possession without the owner's consent, payment of all taxes, and other requirements, but that probably isn't an issue here. Another possibility arises when X pays for the property but Y gets legal title and X didn't intend a gift -- this gives rise to a "resulting trust" -- but that probably didn't happen here, either, since the record ownership is probably what everyone had in mind at the time (in 1977).

My answer won't be correct if my interpretation of your facts is wrong. Please feel free to e-mail me to give additional information at [email protected].

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Answered on 3/27/06, 7:24 pm

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