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Can anyone be authorized to sign on behalf of decedent in case of community property?

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#1 Yaakyia


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Posted 10 February 2013 - 07:41 AM

I am a real estate agent and I have a transaction I'm working on in California, a community property state. The sellers on title (and the loan) are a man and his deceased wife. Two days before the close of escrow, the bank is requiring someone to sign on behalf of the deceased wife (on the closing HUD), a person authorized to do that. I want to show the bank that in a community property state, the husband's signature is enough to dispose of the loan and the property in this sale. Please advise what code or law shows that he can administer the estate (the house in this case) without having to go through probate, in a case where there is no will. Also, if you have any code or law stating that there is no such thing as an authorized person to sign on decedent's behalf in this case, that would be helpful as well. Thank you.

#2 adjusterjack


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Posted 10 February 2013 - 09:01 AM

I doubt if codes or laws will help you.

If you are talking about the bank that's going to be the lender for the buyer, then the bank has every right to require that a court authorized representative of the estate sign off on the papers.

Even if you find a code or law that makes the signature unnecessary, you aren't going to find a code or law that prohibits the lender from requiring it.

If the surviving spouse has not yet probated his wife's estate then he has no choice but to do it now, if he expects to sell the house to somebody who is borrowing money to buy it.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.

#3 harrylime


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Posted 10 February 2013 - 09:41 AM

Under intestacy in California, the deceased spouse's share of community property does pass to the surviving spouse.

Maybe you can convince the bank that there is no will and the surviving spouse is now sole owner of the property. But, if I were the lender, I would not accept that.

I am not in California, but my understanding is that the easiest and quickest way to obtain legal confirmation of the surviving spouse's ownership is a Spousal Property Petition.


#4 pg1067


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Posted 11 February 2013 - 12:09 PM

Has the husband recorded an affidavit of death of spouse? If not, he should. See Probate Code Section 5602.

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