Affidavits of Death: Transferring Property without Probate after an Owner Dies
Owners of real estate can plan ahead to allow the real estate to be transferred without probate after their death. This article discusses how the new owners can remove the deceased owner from title and obtain title in their own name after the owner’s death.
Unless one of these estate planning methods is used, the owner’s beneficiaries (persons named in a will) or heirs (persons entitled to inherit if no will exists) would generally need to go to court to get a probate order transferring the property. If one of these methods is used, the new owners can usually record a notarized affidavit to change ownership of the real estate without needing to go to court. There are still steps to follow, but they are faster and less expensive than a formal probate case.
Types of Affidavits of Death
Affidavit of Death of Joint Tenant
When multiple people own property, they can choose to hold it as joint tenants. Joint tenants own equal shares of the property. After one owner dies, the surviving owner(s) receive their share automatically. Parents sometimes add children as joint tenants so that their property goes to them without probate after the parent dies.
The remaining owner(s) can remove the deceased owner’s name by recording an Affidavit of Death of Joint Tenant, along with a certified copy of the Death Certificate.
To clarify the record, the survivor(s) can then record a Grant Deed listing themselves as the new owner(s). Title companies are often looking for a Grant Deed, not an Affidavit, when they research whether the seller of a property has clear legal ownership, so this can be helpful.
Affidavit of Surviving Spouse or Domestic Partner
Married couples (including registered domestic partners) who own real estate together can hold title in joint tenancy, community property, or community property with rights of survivorship. These different methods have different effects, which should be discussed with a family or estate planning lawyer to decide which is right for your situation.
Community property with right of survivorship: The surviving spouse can record an Affidavit of Surviving Spouse or Domestic Partner Succeeding to Title and a certified copy of the Death Certificate, without the need for a court order. They may then want to file a Grant Deed to clarify the record, as well.
Community property (without right of survivorship): the surviving spouse would go to probate court and file either a Spousal or Domestic Partner Property Petition (DE-221) (a special type of summary probate case) or a full probate case.
Joint tenancy: the surviving spouse would use the Affidavit of Death of Joint Tenant.
Note: a surviving spouse can choose to probate the property even if it qualifies for one of these affidavit methods. This can be advantageous for debt, tax, or other legal reasons. Talk to a probate attorney if you have questions about this.
Affidavit of Death of Transferor (Transfer on Death Deed)
The beneficiary under a Transfer on Death Deed also uses an Affidavit to transfer the property. However, in addition, they need to mail notification to anyone who would be entitled to claim the property as an heir, to allow them time to challenge the transfer. See our detailed guide on Transferring Title to Beneficiaries after a Transfer on Death Deed Takes Effect for instructions and samples.
Affidavit of Death of Trustee
When property is placed into a living trust, the owner usually appoints themselves trustee. After the owner dies, the trust usually specifies who takes over after the owner dies (the “successor trustee”). That person must record an Affidavit of Death of Trustee as notification that they are now managing the trust, along with a certified copy of the Death Certificate.
After the Affidavit of Death of Trustee has been recorded, the new trustee can use a grant deed to transfer the real estate to whoever is named in the trust as recipient.
Other Ways to Transfer Real Estate Without Probate
Even if none of the above Affidavits is applicable, real estate with smaller market value may be eligible for summary procedures rather than full probate. Note that before you can use either of these procedures, you must have the court-appointed probate referee appraise the property to confirm it qualifies. Contact the court in the county where the property is located for referrals.
- Petition to Determine Succession to Real Property (DE-310): If the assessed value of the entire estate, including real estate, is less than $184,500 (in 2023), the heirs can use this process to obtain a probate order specifying who is entitled to what share of the property. The maximum assessed value increases annually. Current amounts can be found on Judicial Council form “Maximum Values for Small Estate Set-Aside & Disposition of Estate without Administration” (DE-300).
- Affidavit re Real Property of Small Value (DE-305): If the assessed value of the decedent’s real estate is less than $61,500 (in 2023), the heirs can use this affidavit to transfer the property. This amount also increases annually and can be found on DE-300.
Unlike the other affidavits in this article, the Affidavit re Real Property of Small Value does need to be filed in court, but the clerk will certify it immediately, and no hearing is needed.
Information on how to use these procedures is available in the self-help book How to Probate an Estate in California or professional practice guides such as California Decedent Estate Practice from CEB Publications.
SH@LL (Self-Help at the Law Library) (formerly Civil Self Help Center)
609 9th Street, Sacramento CA 95814
(916) 476-2731 (Appointment Request Line)
Services Provided: SH@LL provides general information and basic assistance to self-represented litigants on a variety of civil legal issues, including name changes. All assistance is provided by telephone. Visit “What we can help with” for a list of qualifying cases.
Eligibility: Must be a Sacramento County resident or have a qualifying case in the Sacramento County Superior Court.
SH@LL can help with some small estate probate matters. Call to request an evaluation of your situation.
This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.