Probate Pitfalls of Co-Owned Property: What Happens When a Co-Owner Dies Without a Will?

How Was the Property Titled?

This one detail changes everything.

Joint Tenancy (with Right of Survivorship)

If you owned the property as joint tenants, the surviving co-owner automatically inherits the deceased person’s share. No probate is needed. You can easily remove the deceased co-owner by filing an Affidavit of Death of a Joint Tenant with a copy of the decedent’s death certificate.

But this type of title must be clearly spelled out in the deed. Just living together or sharing bills doesn’t create joint tenancy.

Tenants in Common

If the deed says tenants in common—or says nothing at all—you each legally own a divided interest in the property (e.g., 50/50). When one co-owner dies, their share must go through probate.

And here’s the kicker: their share doesn’t automatically go to the surviving co-owner. It goes to their legal heirs—which could be a child, sibling, estranged spouse, or even a creditor. This title type may trigger a probate co-owned property dispute with the decedent’s heirs.

What If There’s No Will?

If the deceased co-owner died intestate (without a will), the court distributes their share based on California’s intestate succession laws. That means:

• If married, their spouse may inherit part or all of the share
• If single, their children (or parents/siblings) may inherit
• If they had debt, creditors may file claims during probate
• If no heirs exist, the property may escheat to the state

And all of this happens while you, the surviving co-owner, wait to learn who your new partner is—and what they want to do with the property.

Can You Buy Out the Heirs in a Probate Co-Owned Property Conflict?

Sometimes, yes. Once the court determines who inherits the share, you may be able to negotiate a buyout. But you may need to:

• Wait for probate to be filed and completed
• Get the property appraised
• Secure financing
• Pay off estate debts first

If the heirs disagree or push for a sale, you could face a partition action, where the court forces a sale of the entire property.

How to Avoid the Pitfalls After Death of Co-Owned Property Owner

If you currently co-own property with someone, now is the time to act—not after one of you dies.

✔ Check the deed. Does it clearly say “joint tenancy with right of survivorship”?
✔ Create a written co-ownership agreement. Spell out what happens if one of you dies.
✔ Encourage estate planning. A living trust or will helps avoid unwanted probate.
✔ Consider adding a transfer-on-death deed. This can keep property out of probate altogether.
✔ Hire a registered legal document professional such as Probate & More to update your paperwork and property ownership.

Final Thought: Friendship Isn’t a Probate Plan

When you share property ownership with someone, your relationship feels secure. Unfortunately, California probate law doesn’t recognize verbal promises, emotional agreements, or handshakes. As a result, you may find yourself face-to-face with a probate co-owned property dispute that you did not expect.

If your co-owner dies without a will, and your deed doesn’t protect you, you could lose control of the home you helped build.

Don’t wait for the court to decide what happens next. Plan now—so your investment, your housing, and your peace of mind are protected.

Are you unsure how your property is titled—or worried about what happens if your co-owner dies without a will?  Let Probate & More help you avoid costly probate surprises with the right documents and strategies. Use one of the convenient links below to contact us today.