Real Property Law

A Primer on Affidavit of Death of a Joint Tenant (Probate Code § 210)

By Underwood Law Firm, P.C.

Relationships are hard, and real estate relationships are even harder. People can own real estate, called “holding title,” in many different ways. One of the more common ways that non-married couples hold title to real estate is as a joint tenant. And one of the core features of a joint tenancy is a “right of survivorship,” which means that if one of the owners dies, then the other ones inherit their shares automatically without the need for the probate process.  

Instead of a lengthy court process, in order to perfect title, the only thing that the other owner must do is to record an affidavit of joint tenant. This article will provide some background information on joint tenancies, explain things needed to know about an affidavit of death of joint tenant, and discuss a common scenario so that people who find themselves in these situations will be better equipped to handle them.    

What is a joint tenant? 

Joint tenants are co-owners of property where each joint tenant owns an equal share. (Cal. Civ. Code § 683(a).)  Joint tenants may acquire this shared property by inheriting it in a will or by some other transfer of the property’s title. The will or transfer must explicitly state that the recipient co-owners are to be joint tenants or that the property rights being transferred are to be a joint tenancy. A joint tenancy can also be created between existing co-owners if the co-owners agree to modify their property’s title “to declare that they hold title as joint tenants.” (Ross & Cohen, Cal. Prac. Guide: Probate (The Rutter Group 2023 Update) § 2:119.)  

In addition to their equal interest in the property, joint tenants must also share an equal right to possess the property. (see Cole v. Cole (1956) 139 Cal.App.2d 691, 695-96.) This means that each joint tenant is entitled to occupy the property, and the joint tenants cannot exclude each other from occupying the property. However, joint tenants may come to an agreement that they will possess the property in an unequal manner.  

If joint tenants come to such an agreement, then the exclusive possession by a single joint tenant will not terminate the joint tenancy. For example, a divorcing couple who own property as joint tenants can mutually agree that one of them will take exclusive possession of the property without terminating the joint tenancy. (see Taylor v. Taylor (1961) 197 Cal.App.2d 781, 787.)  

What happens when a joint tenancy is terminated? 

A joint tenancy can be terminated by a court judgment, through a mutual agreement between the joint tenants, or by one joint tenant conveying their property interest to a third party, among other methods. (Civ. Code § 683.2(a).) Once the joint tenancy is terminated, the joint tenants become tenants in common. The now-tenants in common have similar ownership rights over their property as they did when they were joint tenants except that as tenants in common, their ownership interests do not come with a right of survivorship.  

What happens when one joint tenant dies? 

Joint tenancy differs in key respects from property co-owned through a partnership or tenancy in common. Most notably, joint tenancy comes with a right of survivorship. This means that when one joint tenant dies, the other joint tenant or joint tenants acquire the deceased joint tenant’s interest in the property. (Dang v. Smith (2010) 190 Cal.App.4th 646, 660.) The property interests of other kinds of co-owners, like tenants in common, for example, are typically passed on to heirs or to creditors of the deceased person. But in a joint tenancy, the deceased person’s interest in the property only passes to the living cotenants. 

Right of survivorship is an essential feature of joint tenancy. Indeed, if joint tenants mutually agree to eliminate the right of survivorship from their joint tenancy, the joint tenancy is terminated. (California Trust Co. v. Anderson  (1949) 91 Cal.App.2d 832, 836.)  

When a joint tenant dies, the surviving joint tenants will want to clear the title to the property – meaning, even though they are entitled to the deceased joint tenant’s property interest, “until steps are taken to make the deceased joint tenant’s death a matter of record, the property’s marketability is impaired.” (Rutter § 2:120.) The surviving joint tenants can initiate this process by either: (1) seeking a court decree confirming the joint tenant’s death; or (2) submitting, outside of a court proceeding, an affidavit setting forth knowledge of the joint tenant’s death. (Cal. Prob. Code § 210.)  

What is the procedure for submitting an affidavit of death? 

An affidavit of death may be recorded by surviving joint tenants to clear the title to the property when ownership is not disputed. California Probate Code § 210 provides that the affidavit should be recorded in the county where the property is located. The affidavit must set forth a “particular description” of the property and include the death certificate of the deceased joint tenant. The affidavit must then be “filed in a designated public office as required by law.” (Cal. Prob. Code § 210(a).)   

The county recorder then indexes the affidavit in the “index of grantors and grantees”; in this situation, the deceased joint tenant is recorded as the grantor and the surviving joint tenants are recorded as the grantees. (Cal. Prob. Code § 211(b).) Upon the affidavit being recorded, title insurers and third parties (for example, potential buyers) can then rely on the affidavit as evidence confirming who owns the property.  

Learn more here 

For more information on this or other Real Estate Law topics, visit the website for the Underwood Law Firm.

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