When someone who co-owned property passes away, the surviving owner is often surprised to learn they don’t need to go through probate to clear title. An affidavit of death is the document that makes that possible — a short, notarized statement that, once recorded, updates the public record to reflect who actually owns the property now.
What an Affidavit of Death Actually Does
Under California Civil Code § 683(a), joint tenants each own an equal share of a property, and joint tenancy carries a right of survivorship: when one joint tenant dies, their interest doesn’t pass through probate or to their heirs — it passes automatically and entirely to the surviving joint tenant. That happens by operation of law the moment of death. The affidavit of death doesn’t create that transfer; it documents it, so the public record catches up to what already legally happened.
Until that record is updated, the property’s marketability is genuinely impaired — a title company or buyer has no way to confirm from the public record alone that the deceased’s interest has passed. Recording the affidavit of death fixes that gap.
What California Probate Code § 210 Requires
Under California Probate Code § 210, the affidavit of death must include a “particular description” of the property and a certified copy of the decedent’s death certificate. It’s recorded in the county where the property is located, and it must be sworn before a notary. Once recorded, the county recorder indexes it in the index of grantors and grantees under Probate Code § 211(b) — with the deceased listed as the grantor and the surviving joint tenant as the grantee, the same way an ordinary deed transfer would be indexed.
From that point on, title insurers and prospective buyers can rely on the recorded affidavit as evidence of who owns the property, without needing to independently investigate the joint tenant’s death.
Where an Affidavit of Death Comes Up Beyond Real Property
The same basic document — proof of death, tied to the deceased’s specific role in an asset or account — shows up in several related situations. A successor trustee may need an affidavit of death to step into that role and manage or distribute a living trust’s assets. Banks and financial institutions may require one before releasing funds or updating account ownership when the decedent was a joint holder or named beneficiary. Life insurance and retirement account beneficiaries may need to provide one to claim proceeds. The core document is similar across these situations, but each institution or recorder’s office may have its own required form — it’s worth confirming the specific form accepted before submitting.
Getting the Affidavit of Death Recorded
The affiant — typically the surviving joint tenant, a successor trustee, or a beneficiary — prepares the affidavit with the required details about the decedent and the property, attaches the certified death certificate, and signs before a notary. If real property is involved, the completed affidavit is then recorded with the county recorder’s office where the property sits. Accuracy matters here: any inconsistency between the affidavit and the death certificate can cause the recorder’s office to reject it, adding delay at exactly the point where clear title is usually needed quickly.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.
