Affidavit of Death of Joint Tenant

After 35 years as both an Estate Planning Attorney and a CPA, I’ve seen far too many perfectly good estate plans derailed by simple oversights. Just last week, David came to my office, distraught. His mother and her sister owned a home as joint tenants. The sister passed away unexpectedly, and David, as the surviving son, needed to access the property to prepare it for sale. He’d diligently located his mother’s will, but it didn’t address the joint tenancy. He’d been told by an online service he needed a full probate, costing him potentially tens of thousands in legal fees and months of delay. The reality? A simple affidavit. These situations highlight the critical importance of understanding how jointly held property passes, and what happens when a joint tenant dies.

What Happens When a Joint Tenant Dies?

Joint tenancy includes the right of survivorship. This means when one joint tenant dies, their interest in the property automatically transfers to the surviving joint tenant(s). This transfer happens outside of probate, which is a significant benefit. However, simply having a deceased joint tenant doesn’t automatically allow the surviving owner to sell or transfer the property. Proof of death and ownership must be established with the relevant institutions—title companies, banks, and the county recorder’s office—and that’s where the Affidavit of Death of Joint Tenant comes in.

What is an Affidavit of Death of Joint Tenant?

This affidavit is a sworn statement, typically signed under penalty of perjury, verifying the death of a joint tenant and affirming the surviving owner’s right to the property. It acts as legal documentation to establish the transfer of ownership and allow for the sale, refinance, or transfer of the property. While requirements vary by county, it typically requires a certified copy of the death certificate, a copy of the original deed establishing the joint tenancy, and a clear statement of facts.

What Information Must Be Included in the Affidavit?

• Decedent’s Information: Full legal name, date of death, and place of death.
• Property Description: The complete legal description of the property, as it appears on the deed.
• Joint Tenancy Details: A statement establishing the existence of a joint tenancy with the right of survivorship.
• Surviving Owner Information: The surviving joint tenant’s full legal name and contact information.
• Affiant’s Statement: A sworn declaration that the information provided is true and accurate to the best of the affiant’s knowledge.

Can I Use This Affidavit for Any Type of Property?

The Affidavit of Death of Joint Tenant is primarily used for real property – houses, land, and other real estate holdings. It’s also frequently used for bank accounts and brokerage accounts held as joint tenants. However, the specific requirements for these financial accounts might differ from those for real property, so it’s best to check directly with the financial institution. For other types of assets – like personal property or vehicles – different procedures apply.

What if the Property is Subject to a Mortgage?

If the property has a mortgage, the surviving joint tenant will need to notify the lender of the death and provide a copy of the Affidavit of Death of Joint Tenant along with the death certificate. The lender will then determine if any specific documentation or procedures are required to transfer the mortgage into the surviving owner’s name. Some lenders may require a loan assumption process, while others may simply update their records.

What About More Complex Situations?

While the Affidavit of Death of Joint Tenant is a streamlined process, it doesn’t cover all scenarios. For example, if there are disputes among potential heirs, or if the deceased joint tenant had a will that contradicts the joint tenancy arrangement, a full probate proceeding may be necessary. Similarly, if the property is subject to a lien or other encumbrance, additional legal steps may be required.

As a CPA as well as an attorney, I always advise clients to consider the tax implications of joint ownership. The step-up in basis at death can be significant, providing a substantial benefit for heirs. Understanding these nuances is where a qualified professional can truly add value.

Furthermore, it’s crucial to remember that the rules governing joint tenancy and affidavits can vary significantly by state and even by county. What works in California might not be valid in another jurisdiction. Therefore, it’s always best to consult with an experienced attorney to ensure the affidavit is properly prepared and executed.

The key takeaway? Don’t let a simple procedural hurdle derail your estate plan. Understanding the Affidavit of Death of Joint Tenant and when to use it can save you time, money, and a great deal of stress.

What separates an efficient California probate process from a drawn-out conflict over authority and assets?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

To manage the estate’s value, separate property types by learning what counts as a probate asset, confirm exclusions through assets that bypass probate, and support valuation steps with probate inventory requirements to reduce disagreements about what is in the estate.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

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 those with named beneficiaries (POD/TOD), but MUST include the value of real property unless handled via a separate summary procedure.
• 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, regardless of the estate’s value. It is strictly for assets passing to a spouse and requires the property be characterized as community property or quasi-community property.
• 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.