Affidavit of Death of Joint Tenant

I recently had a client, Emily, call me in absolute distress. Her mother had passed away, and she and her brother jointly owned a small rental property with her mom. They believed they were covered, that the property would automatically transfer to them. But Emily’s brother had been putting off updating the deed after their father passed five years ago, relying on a handwritten “agreement” they’d all made. Now, the mortgage company was threatening foreclosure because they wouldn’t accept anything less than a full probate to verify ownership. The cost to Emily and her brother to correct this oversight – filing for full probate, paying attorney’s fees, and potential delays – was easily $15,000. It was a completely avoidable situation.

What happens to property held in joint tenancy after death?

Joint tenancy is a specific form of property ownership that provides a right of survivorship. This means that when one joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s). However, simply having a right of survivorship doesn’t automatically transfer legal title. Proving that right to institutions like banks, mortgage companies, and insurance providers requires documentation. This is where the Affidavit of Death of Joint Tenant comes in.

Is an Affidavit of Death of Joint Tenant legally binding?

An Affidavit of Death of Joint Tenant is a sworn statement, typically made by the surviving joint tenant, affirming the death of the deceased joint tenant and the surviving tenant’s legal right to the property. While it’s a powerful tool for avoiding full probate, it’s not a universal solution. It’s generally accepted by many financial institutions and title companies, especially for simpler situations. However, some may still require a court order, particularly if there are complexities or if the affidavit doesn’t fully satisfy their internal policies.

What information is needed for an Affidavit of Death of Joint Tenant?

The affidavit typically requires detailed information about the deceased joint tenant, the surviving joint tenant, and the property itself. This includes:

• Deceased Tenant Information: Full legal name, date of death, and place of death.
• Surviving Tenant Information: Full legal name, address, and contact information.
• Property Details: Legal description of the property (as it appears on the deed), assessor’s parcel number, and date the joint tenancy was created.
• Death Certificate: A certified copy of the death certificate is always required.
• Deed: A copy of the deed establishing the joint tenancy.
• Statement of Survivorship: A clear statement that the surviving tenant(s) are the sole owners of the property.

Can I use an Affidavit of Death of Joint Tenant for all types of property?

The Affidavit of Death of Joint Tenant is most commonly used for real property – houses, land, and other real estate. It can also be used for certain types of personal property held jointly, like bank accounts or brokerage accounts, but the specific requirements will vary depending on the institution.

What are the limitations of using an Affidavit?

While the Affidavit simplifies the transfer process, it’s not without its limitations. It’s crucial to understand that this is a sworn statement, and any misrepresentations can have legal consequences. Furthermore, if there are disputes regarding the validity of the joint tenancy, the affidavit may not be sufficient. Also, creditors of the deceased joint tenant may still have claims against the property. You should be aware that 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.

How does a CPA benefit in these situations?

As both an Estate Planning Attorney and a CPA with over 35 years of experience, I bring a unique perspective to these issues. The tax implications of transferring property after death are significant. Properly understanding the “step-up in basis” – the adjustment of the cost basis of an inherited asset to its fair market value at the time of death – is critical to minimizing capital gains taxes. Furthermore, accurate valuation of the property is essential. My CPA background allows me to provide clients with comprehensive advice that addresses both the legal and tax aspects of estate administration.

What if the property is a primary residence?

If the property is a primary residence, 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. This is distinct from the Affidavit for Real Property of Small Value.

What determines whether a California probate estate closes smoothly or turns into litigation?

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.

• Will-Based Power: Secure executor authority letters if a will exists.
• No-Will Power: Obtain administrator authority letters if there is no will.
• Identify Players: Clarify roles using key parties.

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 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.