What happens to property when someone dies?
A common assumption is that property is passed down according to the terms of a decedent’s will; however, there are a few problems with this assumption.
For example, what if the decedent died intestate (i.e. without a will)? What if title to decedent’s property is held in a trust? What if title to property is held jointly by the decedent and a third party with “rights of survivorship”? Or what if the effect of a deed is contrary to the terms of the decedent’s will or trust?
All these factors can have an impact on what happens to property when someone dies. Ultimately, however, the transfer of property after death will be dictated in large part by the title-vesting option the decedent had selected for the property.
What Happens to Property When Someone Dies?
When someone dies, the clearest indicators of what happens to their property are usually found in their estate planning documents — if such documents exist. But even if a person dies intestate (without a will or trust), there are established legal procedures for determining how — and to whom — their property will be transferred.
Complications can arise, however, when a will or trust conflicts with a property’s deed. For instance, imagine a will leaves a home to the decedent’s adult child, but a transfer-on-death deed names the surviving spouse as the beneficiary. Who is entitled to the property: the child or the spouse?
In most cases, the property’s title takes precedence over the terms of a will or trust. That said, there are exceptions, and such situations often require legal interpretation.
Transfer of Property After Death With a Will
When a person dies with a will, their property is generally distributed to beneficiaries according to the will’s terms. However, as noted earlier, a valid property deed — such as a transfer-on-death (TOD) deed with a named beneficiary — can override the instructions in a will.
Before any property can be transferred to beneficiaries, it must pass through the court-supervised probate process, which is used to, among other things, authenticate the decedent’s will, settle debts and distribute assets.
Transfer of Property After Death Without a Will
When a person dies without a will, their property is generally distributed to the decedent’s heirs according to intestate succession laws. Although these laws cannot be challenged, they can potentially be overridden by a valid property deed.
Because the property of an intestate estate still must pass through probate, it, too, cannot be transferred until the probate process completes, and all outstanding debts of the decedent have been paid.
Transfer of Property After Death With a Trust
Property is not considered part of a trust unless its title has been properly transferred into the trust’s name. If a trust creator fails to do this before their death — but there’s clear evidence to suggest they intended to — the trustee may be able to file a Heggstad petition to recover the property for the trust.
Since trusts generally avoid the probate process, a trustee can often begin transferring trust property to beneficiaries once all assets have been identified and accounted for and all debts have been paid. However, keep in mind that if a property deed conflicts with a trust’s terms, the deed may take precedence.
How Title Affects Transfer of Property After Death
In order to determine what happens to property when someone dies, the first thing you will want to do is to determine how the property was owned. If you don’t have this information, you can visit the office of the County Recorder in the jurisdiction where the real property is located to view its most recent property deed.
There are five primary ways to hold title in California are:
- Sole and separate ownership: A single owner has undivided interest in a property.
- Community property: A husband and wife or registered domestic partners jointly own property (i.e., each individual in the marriage/partnership has a 50% ownership interest in the property). At death, each spouse/partner is entitled to dispose of their 50% interest in the property to whomever they choose via their will or trust.
- Community property with right of survivorship: A husband and wife or registered domestic partners jointly own property until one spouse/partner dies, at which point the surviving spouse/partner automatically absorbs the deceased spouse’s/partner’s ownership interest in the property.
- Joint Tenancy: Two or more persons have equal ownership of a property while tenants are alive, but once a tenant dies, the right of survivorship will entitle the surviving tenant(s) to automatically absorb(s) the deceased owner’s interest in the property. Joint tenancy does not require co-owners to be married or in a registered domestic partnership.
- Tenancy in Common: Multiple persons share fractional ownership of a property, with each person holding an undivided interest that they can use, sell or transfer as they wish — subject to limited exceptions. Unlike other ways of holding title, tenants in common are not required to have equal ownership shares.
Title Types Requiring Probate
Property held by a sole owner, as community property or individually by tenants in common generally must pass through probate before it can be transferred to new owners. Unfortunately, probate can be both time-consuming and costly, so to avoid it, people may opt for title arrangements that allow property to transfer directly to surviving co-owners or beneficiaries.
The title types that generally require probate in California are:
- Tenancy in common (only the decedent’s interest in the property passes through probate)
When title to property is held in the foregoing forms, title to property cannot be transferred to surviving co-owners or beneficiaries until it has been probated.
Title Types Not Requiring Probate
Property held in joint tenancy, as community property with a right of survivorship, with a valid transfer-on-death deed or in a trust can often bypass probate entirely. These title arrangements allow ownership to pass directly to the surviving co-owners or named beneficiaries upon the decedent’s death or, in the case of a trust, to a trustee who can ultimately distribute the property to the beneficiaries listed in the trust.
Because these title types streamline the transfer process and avoid the long delays and high costs typical of probate, they are effective estate planning tools used by many.
The title types that generally avoid probate in California are:
- Joint tenancy (only if there are surviving joint owners)
- Transfer-on-death deeds
- Property held in trust
When title to property is held in the foregoing forms, title to the property transfers directly to the surviving owner(s) or named beneficiaries once a title holder dies.
While it is more common for married couples to take title as community property with a right of survivorship, there are some who take title as joint tenants. It’s important to note that there are disadvantages to joint tenancy — both in terms of taxes and estate planning. However, for unmarried couples who desire a right of survivorship, joint tenancy can be a good option.
Avoiding Probate Through Trusts
One of the most common ways to avoid a probate is by placing property into a trust. When property is held in a trust, its transfer after death is guided by the terms of the owner’s trust instrument through a process known as trust administration — which bypasses the need for a formal probate.
Avoiding Probate Through Transfer-on-Death Deeds
California offers a revocable TOD deed, which allows property owners to name beneficiaries to automatically be transferred property upon their death. When a valid TOD deed is in place, the property typically will avoid probate.
Avoiding Probate Through “Shortcut” Probate Petitions
There are other types of petitions that can help property in an estate bypass a formal probate proceeding, including the following:
- Spousal Property Petitions: This petition type can only be used by surviving spouses and registered domestic partners. It allows the court to confirm and convey ownership of property that is designated to pass from a deceased spouse/partner to their surviving spouse/partner without the property being required to pass through a formal probate.
- Petitions to Determine Succession to Real Property: This petition type allows anyone to transfer a decedent’s interest in real property to heirs or beneficiaries without going through a formal probate. However, it’s generally limited to the decedent’s primary residence and only applies if the property’s value does not exceed $750,000.
- Small Estate Affidavits: This petition type can be used by anyone to transfer a decedent’s entire estate — not just real property — to heirs and beneficiaries without the estate having to pass through a formal probate. As its name suggests, this petition can only be used for small estates, which, for deaths that occurred after April 1, 2025, in California, are estates valued at $208,850 or less.
Shortcut petitions typically require just one court hearing, providing a faster and more efficient way to transfer property after a decedent’s death. By avoiding a formal probate, these petitions can save an estate considerable time and money.
How Title Conflicts Can Lead to Probate Disputes
While certain title types offer benefits, such as avoiding probate, they can also lead to disputes when not managed properly. For instance, if someone owns property in joint tenancy with an ex-spouse and dies before updating the deed after divorce, the ex-spouse might still try to claim the property — despite divorce automatically severing a joint tenancy in California — potentially triggering a costly legal battle.
Blended families also face complications. Suppose a married couple with children from previous relationships holds title as joint tenants, and one spouse dies. The surviving spouse receives full ownership. But if they then pass away without updating their estate plan or changing title, the property may go entirely to their children — unintentionally excluding the deceased spouse’s children — even though the property was originally co-owned.
Disputes also arise when title conflicts with a decedent’s estate plan. For example, if a joint bank account is left to the decedent’s children in their will, but the surviving joint owner automatically becomes the sole owner, the children may need to petition the court to recognize the account as part of the estate, using the will as evidence.
Trust-related title issues are also common. If property intended for a trust wasn’t formally transferred into the trust’s name before the settlor died, it may be considered part of their estate. However, a Heggstad Petition can sometimes be used to transfer the property into a trust posthumously — though success isn’t guaranteed.
To prevent such disputes, it is a good idea to speak with an attorney before titling property to learn about each title type’s present and future implications.
FAQs About What Happens to Property After Someone Dies
If you continue to have questions about property transfers after death, check out the frequently asked questions below. Remember, if you need personalized guidance, our law firm is always available to assist.
How do you transfer a deed on an inherited property?
If you are in possession of inherited property, it’s crucial you take the proper steps to transfer the deed into your name; otherwise, you will not be considered a legal owner of the property. Many people falsely assume that being named as a beneficiary of a property equates to them being its legal owners. This, however, is incorrect.
If the property at issue is subject to estate administration, the probate court will issue an order at the conclusion of probate stating how all the decedent’s assets, including any real property, should be distributed to the decedent’s beneficiaries or heirs. In order to properly transfer title from the estate to a beneficiary or heir, the executor or administrator can either sign and record a deed transferring ownership of the property to the beneficiary or heir, or they can simply record a certified copy of the court order on title to the property.
If the property is not subject to estate administration but is instead held in joint tenancy or as community property with rights of survivorship, then all that’s needed to transfer title to the remaining joint tenants and/or surviving spouse is an Affidavit of Death of Joint Tenant or an Affidavit of Community Property with Right of Survivorship, which must be signed and recorded on title to the property.
How do you remove a deceased person from a deed?
If a decedent’s interest in real property is subject to estate administration, then the only way to remove their name from title is to either sell the property to a third party or distribute the property from the estate to the decedent’s beneficiaries or heirs.
If the decedent’s interest in a property is not subject to estate administration — e.g., if the property is held in joint tenancy or as community property with a right of survivorship — then the joint owners or surviving spouse will need to record an Affidavit of Death of Joint Tenant or an Affidavit of Community Property with Right of Survivorship (as noted above), which will remove the decedent’s name from title.
Is it necessary to remove a deceased spouse from a deed?
Yes, it’s generally a good idea to remove a deceased spouse from a property deed — especially if you plan to sell or refinance the property in the future. While ownership may automatically transfer to the surviving spouse depending on how title was held (e.g., joint tenancy or community property with right of survivorship), updating the deed helps avoid title issues and provides a clear chain of ownership.
Is it necessary to formally transfer title to family member?
Yes, formally transferring title to a family member is typically necessary to legally recognize their ownership of the property. Without updating title, the property remains in the original owner’s name, which can cause complications with taxes, liabilities and future transfers. Properly recording the transfer ensures clear legal ownership and helps prevent disputes.
What happens to a house when an owner dies?
When a homeowner dies, what happens to their house depends on how title was held and whether an estate plan exists.
If the property was held in joint tenancy or in a trust, it may pass to the surviving co-owner or beneficiaries without going through probate. Otherwise, it will likely need to pass through probate before being transferred to the heirs or beneficiaries who are entitled to it.
Can you contest a deed transfer after death?
Yes, contesting a deed transfer after death is possible on certain grounds, such as evidence of undue influence, fraud, lack of capacity or improper execution.
It’s common for beneficiaries or other interested parties to challenge deed transfers that conflict with the terms of a decedent’s will or trust.
What happens to tenants in common when one dies?
When a tenant in common passes away, only their fractional share of the property typically passes through probate — that is, unless their share is held in a trust. The ownership interests of the remaining tenants remain unchanged.
Still have questions about what happens to property when someone dies?
Choosing the right way to hold title isn’t just a technical decision — it can have serious legal and financial consequences, especially during probate. Whether you’re administering an estate or trust, or expecting to inherit property, it’s essential to get clear, experienced legal advice.
Call our law firm today to discuss your situation and find out how we can help you avoid costly pitfalls.
