A prospective client calls and says, “My mother died six months ago, and I need to get a deed to her ranch. How much do you charge for preparing a deed?”
With a title report as a factual resource, the attorney can have more confidence that facts recited in the affidavit of heirship are in fact true and correct, making the affidavit less likely to be the subject of a later challenge
The attorney needs to know a great deal more information before he or she can respond, starting with asking, “Did she die with a will?” The client admits that he hasn’t seen his mother in ten years, but he believes there was no will. ” Further questions from the attorney reveal more information about the family. The mother was a widow. The father died two years earlier, also without a will. Another has dropped out of sight and has not been heard from in years. There are rumors he is homeless on the streets of Los Angeles. Another sibling recently passed away, leaving two small children who are currently in foster care because their remaining parent is in prison. Also, the youngest sibling was living with Mom and taking care of her at the time of Mom’s death, and she continues to occupy the property, now claiming it as her homestead and threatening to use a shotgun on anyone who enters without her consent. She contends that Mom promised that the house would be hers in exchange for care during her final illness.
The attorney is forced to tell the client he is not going to get a deed, at least not until heirship issues are straightened out, beginning with the father and which persons were entitled to inherit from him, and then moving on to the mother and her heirs. The client is suspicious. He says, “Look, your secretary told me that the fee for a deed is $395. It sounds like you’re just trying to charge me more money. I’m the oldest, and I was always told the property would be mine one day. I want my deed now!” Unfortunately, that is just not possible, given the facts of the case. The attorney is not a miracle worker, nor is a law office a court of law where differences such as these can receive a binding adjudication.
Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is expressly retained in writing to do so.
Estates Code Section provides a recommended format for the affidavit, although strict adherence to the form is not required. As a practical matter, it is more title company underwriting policy rather than the requirements of this statute that drive the content of such affidavits.
(c) if the deceased spouse is surviving by a child or other descendant who is not also a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse, and the other one-half passes to the deceased spouse’s children or descendants. The descendants inherit only the portion of that estate to which they would be entitled under Section . In every case, the community estate passes charged with the debts against the community estate.
In addition, it turns out that the client has several siblings, one of whom was from the father’s prior marriage
Clients occasionally request that their attorney prepare an affidavit of heirship but have only partial information as to the totality of the circumstances (events may be decades in the past) and be in possession of only some of the documentation relating to the property and its history. In such cases, it is helpful to begin the process by obtaining a title report from a title company that will clarify the current status of title as well as any recorded claims, liens, notices, and other matters of potential relevance.