WHEN WILL A PROBATE OF REAL PROPERTY BE REQUIRED WHEN SOMEONE DIES?
By: Michael J. Young Probate Attorney in Walnut Creek, CA
To determine whether a probate will be required for real property when someone dies, we will need to see how the title to the real property was held. We usually look at the last several deeds of record.
The Revocable Living Trust 
Title held by a trustee in a revocable living trust is usually the best way to avoid probate. So if title is held by “Mary J. Jones as Trustee of the Mary J. Jones Living Trust”, and Mary Jones dies, there will be no probate. The title passes to the beneficiaries named in the trust, without court involvement.
If title is held by a married couple, “Mary J. Jones and John J. Jones as Trustees of the Mary J. Jones and John J. Jones Living Trust”, there will be no probate when either of the two spouses dies. The real property will transfer to the named beneficiaries of the trust when the second spouse dies.
Joint Tenancy
If title is by two people as joint tenants, and one dies, there will be no probate on the first death. There will however be a probate on the second death. So if title is held by “John J. Jones and Frank R. Smith, as Joint Tenants”, and John J. Jones dies, there will be no probate, and Frank R. Smith takes title without court involvement. When Frank dies, there will be a probate.
Tenants in Common 
Title to real property held by tenants in common, does not avoid probate. So if title is held by “John J. Jones, Frank R. Smith and Julie S. Nelson, all as Tenants in Common,” each person’s interest is controlled by his or her will through a probate proceeding. If there is no will, that interest will pass to that person’s heirs in probate court by intestate succession. So if John J. Jones dies, his interest will be probated. This will be the same for Frank and Julie.
Community Property with Right of Survivorship
“Community Property With Right Of Survivorship” is a form of title that can be taken by married couples and domestic partners in California, which is a community property state. A probate will be avoided when the first spouse dies, but there will be a probate when the second spouse dies. So, if property is held by “Mary J. Jones and John J. Jones as Community Property With Right of Survivorship”, and either spouse dies, there will be no probate. There will however be a probate when the second spouse dies.
Husband and Wife as Community Property
In California, a husband and wife (or registered domestic partners) each has the right to decide who will get their one half interest in the community real property when they die. If property is held by “Mary J. Jones and John J. Jones as Community Property”, and Mary J. Jones dies, her interest will pass to her husband, John J. Jones, without probate, as long as Mary did not otherwise leave her interest to someone else.
Get Legal Advice When Deciding How to Take Title
The manner in which title to real property is vested can have legal and tax consequences, so you should seek professional advice before taking title.
Michael J. Young, Probate Attorney, Walnut Creek, CA.
(925) 256-0298
LawYoung1@Gmail.com