How can property be deeded after a death? Do you need probate?

1 answer | Last updated: Sep 12, 2009
A fellow caregiver asked...

How can property be deeded after a death? My ex-husband died in 2005. My divorce papers from 1994 state: "The Husband agrees to Quit Claim his interest in the property and the property shall be put in the name of the Wife to be held in trust for the children mentioned above." He never signed the quit claim as he was instructed by the courts. I need to change the deed which has my name and my ex-husband's name on it to my children's names as instructed on my divorce papers. Do I need probate for property deed changes?

Expert Answers

Liza Hanks is the founder and owner of FamilyWorks Estate Planning, a law firm with offices in Campbell and Los Altos, California, and the author of The Busy Family's Guide to Estate Planning (Nolo, 2007).

The answer depends on local procedures. Start by asking the probate clerk in the county in which your husband died for the correct procedure to follow. When divorce proceedings intersect with probate issues, certain issues stay in the family court system, while others are decided in the probate court. The probate clerk should be able to direct you to the right one here.

You will likely have three possibilities, none of which would involve a full-blown probate proceeding.

  1. You petition the family court where your divorce papers were filed in 1994 to issue an order naming you as the owner of the life estate, with your children as remainder beneficiaries.
  2. You petition the probate court for the same thing.
  3. You file an affidavit in the county recorder's office, stating that subject to the terms of the divorce proceeding you own a life estate in the property, and attaching both the divorce decree and a valid death certificate. If the deed now states that you and your ex are joint tenants, you can also file an affidavit stating that you are the surviving joint tenant and attach the death certificate; this will clear title to your name only, but it doesn't fulfill the terms of your divorce agreement.