Probate

What It Means

Probate is the legal process through which a court validates a deceased person's will, appoints a personal representative, settles outstanding debts, and distributes remaining assets to beneficiaries or heirs. When a co-owner dies, whether their property interest passes through probate depends on the Vesting structure recorded on the Deed.

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Under Tenants in Common, a deceased co-owner's share is part of their estate and must pass through probate (or a trust, if one was established). Under Joint Tenancy with Right of Survivorship, the share transfers automatically to the surviving co-owners by operation of law, bypassing probate entirely.

How Probate Affects Co-ownership

Probate proceedings can take months to over a year to complete, depending on the jurisdiction and complexity of the estate. During this period, the deceased co-owner's share is controlled by the estate — not by the surviving co-owners. This means decisions about the property, including sale, refinancing, or major expenditures, may require the estate's consent or court approval.

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If the deceased co-owner's share passes to an heir who is not a party to the existing Co-ownership Agreement, the surviving co-owners may find themselves in a co-ownership arrangement with someone they did not choose — and who may have no obligation to honor the original agreement's terms unless a Memorandum of Agreement was recorded.

Why It Matters for Co-owners

The intersection of probate and co-ownership is one of the strongest arguments for deliberate Estate Planning among co-owners. Without coordination, a co-owner's death can freeze property decisions, introduce unwanted parties into the ownership structure, and trigger disputes between surviving co-owners and the deceased's heirs.

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A comprehensive Co-ownership Agreement typically addresses death as a triggering event — defining whether surviving co-owners have a Right of First Refusal or Buyout right with respect to the deceased co-owner's share, and establishing a valuation method and timeline for the transaction.

Key Points

• Court-supervised process for administering and distributing a deceased person's estate
• Applies to Tenants in Common shares; Joint Tenancy bypasses probate through survivorship
• Can freeze property decisions for months while the estate is administered
• May result in an heir entering the co-ownership arrangement without the surviving co-owners' consent
• Co-ownership Agreements should address death as a triggering event with defined buyout procedures
• Coordinated estate planning among co-owners reduces probate-related risk