When a person dies, often their estate, meaning their real and personal property along with any liens or debts they may have had, goes into probate. However, in California, not every estate needs to go through the formal probate process.
Similarly, not every item of property from the estate needs to be probated either and not every item of property becomes part of the estate. Just a formal probate process is not always necessary, property can also be held in such a way as it passes without becoming part of the probate estate.
Many people do not want their loved ones to have to go through the time and expense of formal probate proceedings through the courts. For this reason, it may be beneficial to consider titling real property under a “joint tenancy with right of survivorship.”
Real property that is titled in such a way is taken completely out of the probate process, and, upon the death of one of the owners, that owner’s interest then passes to the remaining owners.
If there were only two owners on the title, that gives the survivor full ownership.
If there was more than one surviving owner, the deceased owner’s interest is then split among the remaining owners.
Instead of probating the property, a surviving joint tenant need only submit an Affidavit of Death of a Joint Tenant, along with a copy of the death certificate of the decedent, to the county recorder where the property is located.
However, be aware that any individual joint tenant can unilaterally sever the joint tenancy by selling off his or her interest.
Under California Civil Code Section 683.2, a joint tenant may sell or deed away his or her own interest in the real property, and by doing so, change the ownership of the property to a tenancy in common, thus doing away with the right of survivorship.
Specifically, under § 683.2(c), the right of survivorship will be terminated if the written instrument severing the joint tenancy is recorded either:
Before the severing joint tenant dies, or
Within seven days after the joint tenant’s death, provided that the document was notarized within three days before the joint tenant’s death.