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

The fundamental rule of joint tenancy is the right of survivorship, by which the public learns about the current ownership through a recorded affidavit of death of joint tenant. This article explains joint tenancy and what to do when a joint tenant dies.

What is Joint Tenancy?

Joint tenancy, also known as joint tenancy with right of survivorship or JTWROS, “requires unity of interest, unity of title, unity of time, and unity of possession.”[1]California Tr. Co. v. Anderson (1949) 91 Cal. App. 2d 832, 836. “The distinguishing characteristic of a joint tenancy is that each tenant has a right of survivorship, by which, upon the death of the other tenant, the survivor will automatically succeed to the entire property.”[2]Dang v. Smith, (2010) 190 Cal.App.4th 646, 490. Indeed, “when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s).”[3]Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.

The principal characteristic of joint tenancy is the right of survivorship.”[4]Estate of Propst (1990) 50 Cal.3d 448, 455. Miller & Starr, the leading treatise on California real estate, explains under the heading “Principal characteristic of a joint tenancy” that: “The right of survivorship is the single most important feature of a joint tenancy that distinguishes it from all other forms of cotenancy, except community property with right of survivorship.” [5]Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.

What Do You Do If Your Joint Tenant Dies?

When a joint tenant dies, it is important to notify the public by recording an affidavit of death of joint tenant, which attaches a death certificate.

This law is set forth under Probate Code § 210 as follows:

If title to real property is affected by the death of a person, any person may record in the county in which the property is located any of the following documents establishing the fact of the death:

(a) An affidavit of death executed by a person having knowledge of the facts. The affidavit shall include a particular description of the real property and an attested or certified copy of a record of the death made and filed in a designated public office as required by law.

Is a Probate Action Needed when a Joint Tenant Dies?

No. A probate action is not necessary simply because a joint tenant dies since the joint tenant holds no interest in the property to be distributed by the probate court.

California Jurisprudence explains that “when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant. Nothing ‘passes’ from the deceased joint tenant to the survivor, who rather takes from the instrument by which the joint tenancy was created.”[6]16 Cal. Jur. 3d Cotenancy and Joint Ownership § 10 (citing and quoting Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317).

Miller & Starr also explains that: “When one joint tenant dies, the entire estate automatically belongs to the surviving joint tenant(s)… The interest of the deceased joint tenant passes to the surviving joint tenant or tenants by operation of law.” [7]Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.

Miller & Starr doubles down on this explanation of joint tenancy under the heading “No right to dispose by will,” stating that: “On death, the interest of the deceased joint tenant is not a part of his or her estate and does not pass to heirs or devisees. He or she cannot dispose of it by will, and heirs acquire no interest or estate in the property because the deceased joint tenant had no estate to pass.[8] Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22. Miller & Starr cites to the recent opinion in Pearce v. Briggs (2021) 68 Cal.App.5th 466, 477, which cited case law that “an interest in a joint tenancy cannot be devised by will” meaning that “property held in joint tenancy is not subject to administration in the decedent’s estate.”

Can Joint Tenancy Be Severed During Lifetime?

California Civil Code § 683.2 requires written evidence of the intention to sever the joint interest (usually a deed from the joint tenant to themselves as a tenant in common) signed by that joint tenant so long as one of the following two circumstances applies:

(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.

(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.

California Civil Code § 683.2(c).

As one secondary source explains: “If the client’s decision to sever the joint tenancy is final, good practice requires prompt recordation of the severance.”[9]1 Cal. Transactions Forms–Est. Planning § 1:21 “Severing a joint tenancy strips away the right of survivorship by converting the joint tenancy into another form of ownership, typically tenancy in common.”[10]1 Cal. Transactions Forms–Est. Planning § 1:21

What if the Property is Co-owned by a Trust and the Trustee Dies?

Keep in mind that only an individual can be a joint tenant, since only individuals can die. If the property was held in a trust, i.e., by the trustee of a trust, then the successor trustee would record an affidavit of death of trustee.

Talkov Law’s Partition Attorneys Can Help

Whether you’re seeking to understand the implications of joint tenancy, including the severance of joint tenancy, or find yourself facing disputes over property ownership, Talkov Law is equipped to provide the expertise and support needed to navigate these challenges effectively. Our partition attorneys are committed to ensuring that individuals and non-married couples involved in joint tenancies are fully informed and adeptly represented, facilitating smoother transitions and resolutions. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.

References

References
1 California Tr. Co. v. Anderson (1949) 91 Cal. App. 2d 832, 836.
2 Dang v. Smith, (2010) 190 Cal.App.4th 646, 490.
3 Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.
4 Estate of Propst (1990) 50 Cal.3d 448, 455.
5, 7 Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.
6 16 Cal. Jur. 3d Cotenancy and Joint Ownership § 10 (citing and quoting Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317).
8 Characteristics; creation—Right of survivorship, 4 Cal. Real Est. (4th ed. 2022) § 11:22.
9, 10 1 Cal. Transactions Forms–Est. Planning § 1:21
About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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