How a Surviving Co-Owner Avoids Probate of Real Property in California

Probate is a set of rules under California law that direct how real property transfers from a decedent to heirs. Probate requires two hearings and three court orders. Time involved is a minimum of one year. Probate is not cheap.

For a surviving co-owner to avoid probate, two requirements must be met. The survivor’s name and specific wording must appear on the last transfer deed. Specific wording creates the right of survivorship. The right of survivorship automatically transfers the deceased owner’s interest to the surviving owner.

Very specific phrases on the deed are needed for the right to exist. The phrases are either “as joint tenants” or “in joint tenancy.” If either of these phrases is missing, the deceased’s interest passes not to the co-owner, but the decedent’s heirs through probate.

Even though the survivorship right is automatic, the public record is not automatically updated. For the survivor to sell or borrow on the real property, an “affidavit of death of joint tenant” must be submitted to the county recorder by the survivor. If there is only one survivor as is most often the situation, the survivor owns as an individual. On the death of the survivor an action in probate court is required.

The phrases “as joint tenants” or “in joint tenancy” create the right of survivorship. The right of survivorship automatically transfers the deceased owner’s interest to the surviving owner. An “affidavit death of joint tenant” is submitted to the county recorder by the survivor to update the public record.

Author: Mark W. Bidwell