On this page
- How the owner held title decides whether the building goes through probate. The recorded deed is where to look first.
- A building in the owner's name alone, or the owner's share as a tenant in common, goes through probate unless another law moves it.
- Joint tenancy, community property with right of survivorship, a living trust and property passing to a surviving spouse can each move the building without a probate case.
- A transfer on death deed cannot carry a building of five or more units, and since AB 2016 the small-estate petition for real property reaches only the owner's primary residence.
Why does the deed decide it?
Whether an apartment building has to go through probate depends on how the owner held title to it. Probate Code section 7001 makes a decedent's property subject to administration unless another law provides otherwise, and each route below is one of those other laws. Where none of them fits, the building is sold in probate.
| How title was held | Who sells | Is probate needed? |
|---|---|---|
| In the owner's name alone | The personal representative, once letters issue | Yes, unless a small-estate route fits |
| As tenants in common | The personal representative for the owner's share, the other owners for theirs | Yes, for the owner's share |
| As joint tenants | The surviving joint tenant, after recording an affidavit of death | No |
| As community property with right of survivorship | The surviving spouse, the same way | No |
| In a living trust | The successor trustee | No |
| Passing to a surviving spouse by will or without one | The surviving spouse | No administration, and a spousal property petition can confirm it |
| In an LLC | The company | Not for the building, though the owner's interest in the company may need it |
What if the building is in the owner's name alone?
Then it goes through probate, unless one of the small-estate routes further down fits. Nobody can sign for the estate until the court appoints a personal representative and letters issue, which Probate Code section 8400 makes the moment the appointment takes effect, and after that the sale runs under full authority or court confirmation.
Tenants in common are handled the same way, one share at a time. A tenancy in common carries no survivorship between the owners, so the share of the owner who died is that owner's property under section 7001, and the other owners keep their shares. To sell the whole building, the personal representative sells the estate's share and every other owner signs for theirs. If one of them will not, that is a question for the estate's attorney before any listing goes out.
How do joint tenancy and survivorship work?
A joint tenancy passes the building to the surviving joint tenant without a probate case, which is how the courts' self-help guide on when formal probate may not be needed describes it. What the survivor does is clear the record. Probate Code section 210 provides for an affidavit of death, made by someone who knows the facts and recorded in the county where the property is, with a description of the property and a certified copy of the death record. Los Angeles County's Registrar-Recorder keeps a page for the affidavit of death of a joint tenant. Once it is recorded, the survivor sells as the owner.
Spouses have a second form of survivorship. Under Civil Code section 682.1, community property that the transfer document expressly declares to be community property with right of survivorship passes to the surviving spouse at death without administration, under the same procedures as joint tenancy. The section applies to instruments created on or after July 1, 2001. Either survivorship can be ended while both owners are alive, so the deed to read is the latest one recorded, which may not be the one from the purchase.
What about a living trust or a surviving spouse?
A building in a living trust is sold by the successor trustee, with no probate case for it. The trustee holds the trust's powers and the statutory powers without court authorization under Probate Code section 16200, and those include the power to sell. That assumes the deed put the building in the trust. A building the owner meant to put in the trust and never deeded to it is still in the owner's name, and getting it to the trustee can take a petition under section 850.
Property passing to a surviving spouse, under a will or without one, needs no administration under Probate Code section 13500. For a court order confirming it, the spouse can file a spousal property petition under section 13650, on form DE-221.
Does a transfer on death deed or a small estate help?
For a building of five or more units, a transfer on death deed does not. Probate Code section 5610 limits the real property such a deed can carry to a parcel improved with one to four residential units, or a residential unit in a common interest development such as a condominium. A duplex, triplex or fourplex can pass that way, and a larger building cannot.
The small-estate routes each stop at a dollar ceiling, and the Judicial Council adjusts the ceilings every three years under Probate Code section 890. The current figures are on form DE-300.
| Route | What it reaches | Ceiling |
|---|---|---|
| Affidavit under section 13100 | Personal property only, so never the building itself | $208,850 for deaths on or after April 1, 2025 |
| Petition to determine succession, section 13151 | Since AB 2016, only real property that was the decedent's primary residence in California | $750,000 in gross value of that property, for deaths on or after April 1, 2025 and before April 1, 2028 |
| Affidavit re real property of small value, section 13200, form DE-305 | Real property of small value | The figure on form DE-300 |
AB 2016, which took effect January 1, 2025, narrowed the petition to the primary residence, as a Judicial Council invitation to comment describes it. A rental building the owner did not live in is outside it. Whether a building the owner did live in counts as a primary residence for this purpose is a question for the estate's attorney.
What if an LLC owns the building?
Then the building belongs to the company, and nothing about it changed when the member died. What changed is who holds the member's interest. Corporations Code section 17705.01 makes that interest personal property. Section 17705.04 lets the member's personal representative or other legal representative exercise a transferee's rights and, to settle the estate, a member's rights to information. If the interest was in the member's own name, it may need probate even though the building does not. The company is the seller. Its operating agreement is the first document to read with the attorney.
What should an executor do first?
- Get the most recent recorded deed, which the county's Registrar-Recorder keeps, and read how title is vested.
- Look for a trust, a later deed, an LLC's papers and anything else that names who takes the building.
- List everything else the owner held and roughly what each item is worth, because the attorney needs that picture to tell you which route fits.
- Keep the building insured and running. Before letters, section 8400 lets a named executor take the steps needed to preserve the estate.
- Take the deed and the list to an estate attorney before signing anything about the building. If probate is needed, the case opens with a Petition for Probate, form DE-111, and each stage after that filing waits on a hearing, a notice or the court's calendar.
Shaya Lowenstein is not an attorney, and which of these routes applies is a legal judgment he cannot make for you. What he can do once the right person holds authority is tell you what the building would bring, and prepare it for a sale on whichever route it turns out to take.