Affidavit of Death of Joint Tenant

Randy called me, frantic. He’d meticulously planned his estate, including a joint tenancy with his daughter, Emily, on his beachfront property. He’d even drafted a codicil to his trust, specifically excluding the beach house from the trust’s assets, intending it to pass directly to Emily. But Randy passed away unexpectedly, and Emily couldn’t find the signed codicil. Without it, the trust could potentially claim the property, creating a costly and drawn-out probate battle—potentially costing Emily tens of thousands in legal fees and delaying her inheritance for years.

This is a surprisingly common scenario. We spend so much time planning the what of estate distribution, but often overlook the how of getting assets into the hands of beneficiaries quickly and efficiently. While trusts are powerful tools, they require meticulous funding – meaning assets must be legally transferred into the trust’s ownership. Joint tenancy, and the associated Affidavit of Death of Joint Tenant, offers a streamlined alternative for certain assets, bypassing probate altogether.

What is a Joint Tenancy and Why Does it Matter?

Joint tenancy is a form of co-ownership where two or more people own property with the right of survivorship. This means that when one owner dies, their share automatically passes to the surviving owner(s), outside of probate. This is a significant advantage, as probate can be time-consuming, expensive, and public. However, establishing and maintaining the joint tenancy correctly is crucial. It’s not enough to simply add a name to a deed; the intent must be clear, and the deed must be properly recorded.

How Does the Affidavit of Death of Joint Tenant Work?

When a joint tenant dies, the surviving joint tenant can use an Affidavit of Death of Joint Tenant to legally establish their ownership of the property. This affidavit, filed with the County Recorder’s Office, serves as legal documentation of the deceased joint tenant’s death and the surviving tenant’s right to ownership. It avoids the need for a court order or probate proceeding. While seemingly simple, accuracy is paramount. Errors in the affidavit can lead to title issues and delays.

What Information is Required on the Affidavit?

The Affidavit of Death of Joint Tenant typically requires several key pieces of information, including:

• Deceased Joint Tenant’s Information: Full name, date of death, and place of death.
• Property Description: A legal description of the property, as it appears on the deed.
• Surviving Joint Tenant’s Information: Full name, address, and a statement affirming their status as the surviving joint tenant.
• Recording Information: Details about where and when the original deed was recorded.
• Notarization: The affidavit must be signed under penalty of perjury and notarized by a licensed notary public.

What Assets Can Use This Affidavit?

The Affidavit of Death of Joint Tenant is generally applicable to real property held in joint tenancy. It can also be used for certain types of personal property, such as bank accounts or brokerage accounts, held with rights of survivorship. However, it’s crucial to verify that the specific asset is eligible for this type of transfer. For example, for deaths occurring on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit (Probate Code § 13100) has increased to $208,850. This procedure allows successors to collect personal property without court involvement. This total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of any real property unless that property is handled via a separate summary procedure.

What About Primary Residences?

For primary residences, there are additional options. Under AB 2016 (Probate Code § 13151), a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate administration. This is a court-filed Petition requiring a hearing and a Judge’s Order, though it is significantly faster than full probate. It’s important to distinguish this from the Section 13100 affidavit, which is a simpler, non-court process. The Affidavit for Real Property of Small Value is also available for interests in real property valued at less than $69,625 (the 2025/2026 adjusted limit), allowing successors to file an affidavit with the Court Clerk and record a certified copy with the County Recorder, bypassing a hearing.

What Happens if There’s a Complication?

There are situations where the Affidavit of Death of Joint Tenant isn’t sufficient. For example, if the deed is unclear, if there are multiple surviving owners with conflicting claims, or if the property is subject to a lien or encumbrance, a more complex probate proceeding may be necessary. If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it, a Section 850 Petition can obtain a court order confirming the asset as trust property.

I’ve been practicing estate planning and acting as a CPA for over 35 years, and I’ve seen firsthand how proper planning – and accurate execution of documents like the Affidavit of Death of Joint Tenant – can save families significant time, money, and emotional distress. As a CPA, I also understand the tax implications of these transfers, including the crucial step-up in basis that can minimize capital gains taxes for the beneficiaries. It’s not just about avoiding probate; it’s about maximizing the value of the inheritance.

What if I Already Have a Trust?

Even with a robust trust, joint tenancy can still play a valuable role. It can serve as a safety net for assets that haven’t been formally transferred into the trust. It’s common for clients to add children to a deed as joint tenants for ease of transfer, but this should be done strategically and in coordination with the overall estate plan.

• Surviving Spouses: This option allows for the transfer of unlimited assets to a surviving spouse without full probate administration, regardless of the estate’s value, provided the property is characterized as community property or quasi-community property.
• Transfer on Death (TOD) Deeds: A Revocable Transfer on Death Deed is a valid alternative to probate for residential property, but it MUST be recorded within 60 days of notarization to be valid.
• Motor Vehicles/Vessels: Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). The value of the vehicle is excluded from the $208,850 small estate calculation.

What causes California probate cases to spiral into delay, disputes, and extra cost?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on California Probate Alternatives

• Personal Property Affidavit ($208,850 Limit): California Probate Code § 13100 (Small Estate Affidavit)
  For deaths on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit has increased to $208,850. This procedure allows successors to collect cash, stocks, and personal items without court involvement. Warning: This total MUST NOT include assets held in joint tenancy, trust, or named beneficiaries (POD/TOD), but MUST generally include the value of all real property in the estate.
• Primary Residence Succession (AB 2016): California Probate Code § 13151 (Petition for Succession)
  You must distinguish between the Affidavit for Real Property of Small Value (strictly for property <$69,625) and AB 2016. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate. This is a court-filed Petition requiring a Judge’s Order, though it is significantly faster than full administration.
• Spousal Property Petition (Unlimited): California Probate Code § 13650 (Spousal Transfers)
  This powerful alternative allows for the transfer of unlimited assets to a surviving spouse or domestic partner without full probate administration. It applies to any asset passing to the spouse, whether characterized as community property, quasi-community property, or separate property (via Will).
• Trust Assets & The “Heggstad” Petition: California Probate Code § 850 (Heggstad Petition)
  If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it (the “Oops” factor), a Section 850 Petition can obtain a court order confirming the asset as trust property. This “cures” the title defect and avoids opening a full probate estate for that single asset.
• Vacant Land & Timeshares: California Probate Code § 13200 (Real Property of Small Value)
  For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value with the Court Clerk and record a certified copy with the County Recorder. This completely bypasses the need for a hearing or judge’s order.
• Vehicle & Vessel Transfers (DMV): DMV Form REG 5 (Affidavit for Transfer Without Probate)
  Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). Critically, the value of the vehicle is excluded from the $208,850 small estate calculation, meaning a high-value car does not disqualify an estate from using summary procedures.
• Digital Asset Access (RUFADAA): California Probate Code § 870 (RUFADAA)
  Even in summary administration, digital assets can be locked. Without specific RUFADAA language (Probate Code § 870) in your Will or Trust, service providers like Coinbase and Google can legally deny successors access to digital wallets and accounts, forcing a full probate just to retrieve them.