California law determines who inherits real estate, whether a court gets involved, and how title legally transfers. The answer depends on how the property was owned, not just who the deceased intended to receive it.
When a parent or relative passes away leaving real estate behind, the immediate question is rarely about grief; it’s about what to do next. Who legally owns the property now? Does the family have to go to probate court? What if there was no will?
What happens to property when someone dies in California depends on a specific set of factors: whether the deceased had an estate plan including a will or trust, how the property was titled, who the surviving family members are, and what the estate’s total value is. The answers to those questions determine which legal path applies, and what the family’s next steps must be.
What Happens to Real Estate After Death in California
California law does not transfer property automatically based on family relationship alone. Title to real estate follows the legal ownership structure that existed at the time of death. There are two categories: probate assets and non-probate assets.
Non-probate assets transfer outside of court supervision. These include:
Property Held in a Living Trust
If the deceased placed their home into a revocable living trust during their lifetime, the successor trustee named in that trust takes over administration immediately after death. No court filing is required. The trustee collects the property, pays any outstanding debts, and distributes or manages the asset according to the trust terms. This is the most common way California families avoid probate entirely for real estate.
Property Held in Joint Tenancy
When two or more people own property as joint tenants with right of survivorship, the surviving owner automatically inherits the deceased owner’s share at death. The transfer is completed by recording an Affidavit of Death of Joint Tenant with a certified copy of the death certificate in the county where the property is located. No probate proceeding is needed.
Property with a Transfer-on-Death Deed
California allows property owners to record a Revocable Transfer on Death (TOD) Deed naming a beneficiary who inherits the property upon the owner’s death. Like a living trust, this keeps the transfer out of probate court. To be effective, the deed must be recorded during the owner’s lifetime, within 60 days after it is signed and notarized. After the owner’s death, the beneficiary records the death certificate and an affidavit to complete the transfer.
Probate assets are properties titled solely in the deceased person’s name, without a trust, joint tenancy, or TOD deed. These must pass through the California probate court process before title can transfer to any heir or beneficiary.
When Probate Is Required and What to Expect
Full probate in California is supervised by the Superior Court in the county where the deceased lived. The court validates any will, appoints a personal representative (the executor named in the will, or an administrator if there is no will), and oversees the distribution of estate assets.
A formal California probate typically takes 9 to 18 months, and sometimes longer when disputes or complex assets are involved. Court filing fees, publication fees, and statutory attorney and executor fees, calculated as a percentage of the gross estate value, add meaningful cost to the process. On a $700,000 home, statutory fees alone can reach tens of thousands of dollars before accounting for any complications.
California offers alternatives to full probate for qualifying estates.
Small-Estate Affidavit
For personal property only (not real estate), estates with a gross value of $208,850 or less qualify for a simplified affidavit procedure under California Probate Code § 13100. This lets heirs collect personal property assets without court involvement. It does not apply to real estate.
Petition to Determine Succession to Primary Residence
For a deceased owner’s primary residence in California, California Probate Code §§ 13150–13151 allows heirs to petition the court for a simplified transfer when the gross value of the home does not exceed $750,000 (effective April 1, 2025). This is significantly faster than full probate, typically resolved in one court hearing rather than a multi-stage court proceeding spanning more than a year.
Spousal Property Petition
A surviving spouse or registered domestic partner can use a Spousal Property Petition to confirm their right to community property and certain separate property without going through full probate. This proceeding is heard by the probate court but is streamlined compared to full estate administration. The Judicial Council of California provides the forms required for this petition (Form DE-221).
How to Transfer Property After Death of a Parent Without a Will
When a parent dies without a will, California’s intestate succession statutes govern who inherits, not the family’s wishes, not informal agreements, and not assumptions about what the deceased would have wanted.
Intestate succession is controlled by California Probate Code Sections 6400 through 6402. The rules work differently depending on whether the property was community property or separate property.
Community Property
Community property, meaning assets acquired during the marriage, passes entirely to the surviving spouse or registered domestic partner. The deceased parent’s half does not go to the children if there is a surviving spouse.
Separate Property
Separate property, meaning assets owned before the marriage or received as gifts or inheritance during it, is divided depending on who survives. If there is a surviving spouse and one child, the separate property is split equally between them. If there is a surviving spouse and two or more children, the spouse receives one-third and the children share the remaining two-thirds equally.
If there is no surviving spouse, the deceased parent’s separate property passes entirely to the children in equal shares.
Changing the Deed After a Parent Dies Without a Will
How to transfer property after death of a parent without a will still requires a legal process to establish heirship and change the deed. Depending on the estate’s value and composition, this means petitioning the probate court for either a full probate proceeding or, if the home was the deceased parent’s primary residence in California and its value is $750,000 or less, a simplified Petition to Determine Succession to Primary Residence. The court issues an order confirming the heirs’ ownership, which is then recorded with the county to update title.
Families sometimes assume that because everyone agrees on who should inherit, no legal action is required. Agreement among heirs does not transfer title. Until a court order or proper deed is recorded, the deceased person’s name remains on the property, and that creates problems when the heirs eventually want to sell, refinance, or use the property as collateral.
Inherited Property Passing to Multiple Heirs: Co-Ownership and Disputes
When a parent dies without a trust or survivorship arrangement and leaves real estate to two or more children, those children inherit as tenants in common. Each sibling owns an undivided fractional share of the entire property. No one sibling owns a specific room or portion. All co-owners share the right to use and occupy the property.
This arrangement works when co-owners agree. When they do not, the legal structure becomes complicated quickly.
A common question in these situations is whether one sibling can force the sale of the inherited family home. The answer is yes. Any co-owner in a tenancy in common can file a partition action, which is a court proceeding that either physically divides the property between the co-owners or orders it sold and the proceeds distributed. For most residential properties, physical division is not practical, so partition actions can result in a court-ordered sale.
California Partition of Real Property Act: Co-Owner Buyout Rights
The 2023 California Partition of Real Property Act (Code of Civil Procedure § 874.311 et seq.) changed how partition actions work for real property co-owned as tenants in common, including family homes inherited by multiple heirs without a formal estate plan.
Under this law, before a court can order an open-market sale of co-owned property, it must:
- Order an independent appraisal of the property’s fair market value.
- Give any co-owner the right to buy out the interests of the co-owners seeking partition at the appraised value.
This means that if one sibling wants to keep the family home and another wants to sell, the sibling who wants to keep it has a statutory right to purchase the other’s share at the court-determined fair market value, rather than being forced into an open-market sale they did not want. The buyout must be elected within a specific window, so a co-owner who wants to keep the property needs to be prepared to pay for the other’s share.
The Act applies to real property held in tenancy in common where no written agreement binding all co-owners governs partition. Whether a particular property qualifies is worth establishing before any legal strategy is formed.
Immediate Steps for the Estate Representative
Regardless of which legal path applies, the person responsible for the estate should take certain practical steps immediately after the owner’s death: confirm that homeowners insurance remains active (policies sometimes require notification when an insured dies), secure the property and change locks if it will be vacant, and keep utilities active to prevent damage. Personal property inside the home should remain in place and undisturbed until the legal estate process confirms who has authority to distribute or dispose of it.
What to Consider for Your Own Property
The process described on this page (probate proceedings, intestate heirship petitions, co-ownership disputes) is avoidable. A revocable living trust, properly funded to include the real property, removes a home from probate entirely and lets the successor trustee transfer it without court involvement or sibling negotiation over process. A TOD deed is a simpler alternative for owners with straightforward beneficiary situations. Joint tenancy works in some cases but eliminates the surviving owner’s right to control who ultimately inherits the property after the second death.
The families dealing with the most complicated situations are usually those where no planning was done at all.
Frequently Asked Questions
Does a will avoid probate in California?
No. A will does not avoid probate. A will tells the court how the deceased wanted their estate distributed, but it still has to pass through the probate process before any heir receives legal title to real estate. Only non-probate structures (living trusts, joint tenancy, TOD deeds) bypass court involvement.
How long does probate take in California?
A formal California probate typically takes 9 to 18 months. Contested estates, missing heirs, title disputes, or complex assets extend that timeline further.
Can we sell the house before probate is complete?
Generally, no. Before the estate’s personal representative has legal authority to act (granted by the court through Letters Testamentary or Letters of Administration), no one has the power to sell or transfer the deceased’s real property. Some sales can occur during probate once the personal representative has that authority, but the level of authority the court grants, along with the required notices and approvals, determines how the sale proceeds.
What if one sibling refuses to cooperate on selling inherited property?
Any co-owner of inherited real property held as tenants in common can file a partition action in California Superior Court. The court will either order a division or, for many residential properties, a sale. Under the California Partition of Real Property Act, co-owners who want to keep the property have the right to buy out the departing co-owner’s share at appraised value before the court orders an open-market sale.
Is there a deadline to transfer property after someone dies in California?
California does not impose a single hard deadline for initiating probate, but waiting has real consequences. Delays create title clouds, insurance complications, property tax issues, and potential creditor claims. Filing a probate petition sooner preserves the estate’s assets and the heirs’ legal rights.
Next Steps for California Property After a Death
How property passes after a death in California comes down to how it was titled. Trust, joint tenancy and TOD deed property can transfer without probate. Property in the deceased person’s name alone needs a court process, and if there was no will, state law decides who inherits. If you are handling a loved one’s property now, or want to keep your own family out of probate, a licensed California estate planning or probate attorney can look at how the property is titled and tell you which path applies.
This article provides general informational guidance on California property transfers and does not constitute formal legal representation or individual legal advice. California probate law and statutory thresholds are subject to change. Consult a licensed California estate planning or probate attorney for advice specific to your situation.