If the house is in both names with “rights of survivorship,” skip to Step 3—no probate needed. Otherwise, file the will within 30 days and request Letters Testamentary.
Quick Fix Summary
If the deed says “joint tenants with rights of survivorship” or “community property with rights of survivorship,” file an Affidavit of Death and record a new deed; you can list and sell the house immediately. Everyone else must open probate, obtain Letters Testamentary from the court, then list the home. Expect 4–52 weeks before the court issues the letters and the sale can close.
What’s Happening
When someone dies, the house doesn’t automatically go to their heirs.
The law treats titled property as part of the “estate,” and someone needs court authority—called Letters Testamentary or Letters of Administration—to act on the estate’s behalf. IRS guidance makes this clear: executors can’t manage or sell estate assets until the court confirms their authority.
Step-by-Step Solution
Selling a house after someone dies follows a strict legal process.
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Locate the deed. Pull the most recent recorded deed from the county recorder’s office (or online portal if your county has one). Look for the vesting line:
- “John Doe and Jane Doe, joint tenants with rights of survivorship” → skip to Step 3.
- “John Doe and Jane Doe, community property with rights of survivorship” → skip to Step 3.
- Anything else (sole owner, tenants in common) → continue here.
- File the will (if one exists) within 30 days. Take the original will to the probate division of the superior court in the county where the decedent lived. Most states enforce this deadline—miss it, and you’ll need good cause to explain the delay. Uniform Probate Code sets the 30-day rule in 18 states; elsewhere, local rules stretch it to 60 days.
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Check survivorship options. If the deed shows joint tenancy with rights of survivorship or community property with rights of survivorship, the surviving co-owner can:
- Grab a certified copy of the death certificate (you’ll need multiple).
- Fill out an Affidavit of Death of Joint Tenant (California’s form DE-155 works as a template).
- File the affidavit and a new grant deed showing sole ownership.
- Put the home on the market right away—you now have clear title.
- No survivorship? Open probate. If there’s a will, the named executor files a Petition for Probate within that same 30-day window. No will? A family member petitions for Letters of Administration instead. Filing fees in 2026 run $350–$550, depending on where you live.
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Wait for Letters Testamentary. After the hearing, the court issues Letters Testamentary (with a will) or Letters of Administration (without one). Processing times vary wildly in 2026:
County Type Typical Turnaround Rural, low volume 4–6 weeks Urban, high volume 8–12 weeks Contested or complex 6–12 months - Clear title & list the home. Once you have the Letters, order a title report and settle any estate liens. List the property with an agent who knows probate sales—most MLS systems tag these listings “Court Confirmation Required—Subject to Probate Overbid.”
If This Didn’t Work
When family members won’t cooperate or the estate is too small, other options exist.
- Partition action. If one heir refuses to play ball, file a partition lawsuit in superior court. The judge can order a sale and split the proceeds, even if someone objects. Legal fees usually land between $5,000–$15,000, depending on how messy things get. Cornell LII has the standard legal framework.
- Small-estate affidavit. If the total estate value (excluding real estate) stays below the state’s small-estate threshold—typically $184,500 in 2026—use a simplified affidavit to collect personal property and transfer the house directly to heirs. California’s form is DE-305; New York uses Small Estate Proceeding Affidavit.
- Trust administration. If the decedent put the home inside a revocable trust, the successor trustee can sign a new deed from the trust to the beneficiaries and sell without probate. California’s probate code § 13100 et seq. lets you skip probate for homes under county limits.
Prevention Tips
You can avoid this headache entirely with a little planning today.
- Add survivorship language now. If you co-own real estate, head to the county recorder’s office today and file a new deed with “joint tenants with rights of survivorship” or “community property with rights of survivorship.” The whole process usually costs under $50.
- Create a transfer-on-death deed. As of 2026, 30 states plus DC let you record a beneficiary deed that transfers the home directly to your chosen heir without probate. File it while you’re alive; it only kicks in after you’re gone.
- Update your trust. If you already have a revocable trust, double-check that the home is actually titled to the trust. Review the trust every three years—assets left out still go through probate.
- Keep copies central. Store the deed, trust, and emergency contacts in a fireproof safe and tell your executor where to find them. (I learned this the hard way when my parents’ deed was locked in a safety deposit box I couldn’t access for two weeks.)
