How to Keep Your Home Out of Probate in California

The quick take

Probate = a court process that can slow a sale for months (sometimes a year+). The best way to avoid it is to set up the right ownership before anyone passes. In California, four common paths help families bypass probate on real estate:

1. Hold title in a living trust

2. Use “right of survivorship” (Joint Tenancy or Community Property with Right of Survivorship)

3. Record a Revocable Transfer on Death (TOD) Deed

4. Own through an entity (LLC/partnership/corporation), often alongside a trust

Below is what each means in real life—and what to do next.

1) A Living Trust (the most common)

What it is: You (the owners) create a revocable living trust and retitle the property into the trust’s name.
Why it helps: When someone passes, the successor trustee can transfer or sell the home without probate—handled administratively in escrow.

Who signs when selling?
The successor trustee signs. Title and escrow will review the trust (or a certification of trust) to confirm who has authority.

What if the home never got retitled to the trust? (Heggstad petition)
If the trust lists the property but the deed was never moved into the trust, a Heggstad petition can ask a court to treat it as if it were titled in the trust. It’s usually faster and simpler than full probate. After that, the sale works like any trust sale.

Client move:

• Confirm your home is actually deeded to the trust now (not just mentioned in the documents).

• Keep a certification of trust handy for escrow.

2) Right of Survivorship (two flavors)

Joint Tenancy (any co-owners)

When one joint tenant dies, the survivor becomes the full owner. Title updates through an administrative process, not probate. This isn’t just for spouses—any co-owners can hold as joint tenants.

Community Property with Right of Survivorship (spouses/registered domestic partners)

Like joint tenancy, the survivor gets full ownership—plus a potential full step-up in tax basis at the first death, which can reduce capital gains if/when you sell.

Important: Other forms such as Tenants in Common or “Community Property” without the survivorship language do not avoid probate.

Client move:

• Check your current deed. If you want survivorship (and you’re eligible), talk to your attorney/CPA and consider changing vesting to match your goals, especially for tax basis planning.

3) Revocable Transfer on Death (TOD) Deed

What it is: You record a deed naming a beneficiary who receives the property at your death, outside probate. It’s revocable while you’re alive.

Where it fits:

• Simpler estates that want to avoid a trust for now

• Certain property types only (e.g., 1–4 unit homes/condos; special limits apply)

Cautions:

• Must be filled out and recorded exactly right and before death.

• Beneficiary still has to handle debts/liens, and there are notice steps after the owner’s death.

• Not ideal for every family situation (blended families, creditor issues, etc.).

Client move:

• If you’re not ready for a full trust, ask your attorney whether a TOD deed fits your situation and timeline.

4) Title Held in an Entity (LLC, partnership, corporation)

Why it helps: Ownership follows the entity’s rules (operating agreement, buy-sell agreements), which may allow transfer without probate.
Reality check: Usually used with investment property or multi-owner planning, and commonly paired with a trust for estate planning.

Client move:

• If you already own in an LLC, confirm your operating agreement spells out exactly who can sell and what happens at death—and that it aligns with your overall estate plan.

“What if there’s a will that says something different?”

Generally, the trust terms and deed vesting control the property. A will rarely overrides a properly funded trust, a deed with right of survivorship, or a valid TOD deed. If documents conflict, bring them to an estate attorney before listing.

When you still may need a simple court order (faster than full probate)

Sometimes you can transfer real estate without full probate but still need a one-time petition:

• Petition to Determine Succession to Real Property
  For a primary residence below a set value cap (raised to $750,000 on April 1, 2025, with periodic inflation adjustments). This shortcut gets a court order naming who succeeds to title.

• Spousal/Partner Property Petition
  For a surviving spouse/registered domestic partner to confirm their ownership without a full probate.

• Affidavit re Real Property of Small Value
  For properties up to a small-value cap (about $69,625 as of April 1, 2025; this one doesn’t have to be a primary residence).

• Heggstad Petition (covered above)
  To treat a property as trust property when the deed wasn’t moved into the trust but evidence shows it was intended.

These save time and money vs. formal probate, but they still involve the court once.

What this means for you (buyer/seller/heir)

If you’re an heir or family seller right now

• Bring your documents: death certificate, deed, trust (or certification), any wills, and contact for the title company.

• We’ll help you confirm who has authority to sign and which path (administrative vs. shortcut petition) applies.

If you’re a current owner planning ahead

• Pick your path: trust, survivorship deed, TOD deed, or entity—then execute the paperwork now.

• Fund the trust: if you have one, record a deed into the trust (don’t just list the home inside the trust document).

• Coordinate taxes: survivorship vs. community-property-with-survivorship can have big basis differences—loop in a CPA.

If you’re buying a home

• Decide how you want to hold title on day one. We can review options with title/your attorney so it matches your estate plan and tax goals.

FAQs (in plain English)

Do all properties go to probate when someone dies?
No. With a trust, right of survivorship, TOD deed, or entity (properly structured), many homes avoid probate.

If there are two joint tenants and one dies, can the survivor sell without probate?
Yes. Title can be updated administratively; the survivor signs.

We have a trust, but the deed is still in our names. Are we safe?
Not yet. The property needs to be deeded into the trust. If the owner has passed and that never happened, a Heggstad petition may help—talk to your attorney.

Can a will override a trust or survivorship deed?
Usually no. Trust terms and recorded survivorship/TOD deeds typically control the property.

What if we must go to court—are we stuck for a year?
Not always. Shortcut petitions (like Succession to Real Property or Spousal Property petitions) can be much faster than formal probate.

How we help (so your timeline doesn’t stall)

• Title strategy: We confirm who can legally sign before we list or open escrow.

• Document coordination: We work closely with title/escrow and your attorney to keep timelines tight.

• If court is needed: We plan dates and contract language around the shortcut petition so the sale stays on track.

• Buyer side: We make sure your vesting choice at closing supports your long-term plan.

Ready for a no-stress plan?

Text us and we’ll send a one-page checklist, introduce you to trusted estate attorneys/title officers, and map the fastest path for your situation.

Disclaimer: This is educational information, not legal or tax advice. Laws and dollar thresholds change; confirm details with your attorney, CPA, and title company.