A co-owner of a DC house died. Does it go through probate?

It depends on four or five words on the deed. The same house can pass to the surviving owner in a day, or put half its title into a probate estate, depending on how the owners took title. Here is how to read your deed and what the D.C. Code says happens next.

The short version

When one owner of a District house dies, the form of ownership on the vesting deed decides what happens to their share:

1. Joint tenancy with right of survivorship or tenancy by the entirety (spouses or domestic partners): the survivor ends up owning the whole house. The deceased owner's share does not go through the estate.
2. Tenancy in common: the deceased owner's share goes to their estate — by will, or by intestacy — and usually needs a probate case at the Register of Wills before it can be sold.
3. Life estate: when the life tenant dies, the life estate simply ends and the named remainder owner(s) hold the house.

Three ways to co-own a DC house

§ 42–516 sets the ground rules. Every estate granted or devised to two or more people is a tenancy in common unless expressly declared a joint tenancy (§ 42–516(a)); a tenancy by the entirety may be created in any conveyance to spouses or to domestic partners (§ 42–516(c)); and property vested in executors or trustees, as such, is a joint tenancy unless the instrument says otherwise (§ 42–516(a)).

Heirs who inherit together without a will also end up as tenants in common: the District abolished coparcenary, and where two or more people inherit from someone who died without a will, “they shall be tenants in common” (§ 42–517). That is why a house that went through DC intestacy a generation ago can have several owners today, none with survivorship rights.

How to tell which one you have

Pull the vesting deed — the last deed that put the current owners on title — from the Office of the Recorder of Deeds. The words after the owners' names are what count:

• “as joint tenants,” “as joint tenants with right of survivorship,” or similar express language → joint tenancy.
• “as tenants by the entirety” (to spouses or domestic partners) → tenancy by the entirety.
• “as tenants in common,” or nothing at all → tenancy in common under § 42–516(a).

Then check what happened after that deed. A co-owner may have deeded their share to someone else, to a living trust, or signed a transfer on death deed, and an earlier owner's death may never have been cleared from the record (see when an earlier death was never probated). A title company reads the whole chain; do not rely on a family member's memory of it.

The 120-hour rule and other exceptions

Survivorship only works if someone actually survived. For co-owners with a right of survivorship, the District follows the uniform simultaneous-death rule:

• If it is not established by clear and convincing evidence that one of two co-owners survived the other by 120 hours, half the property passes as if one survived and half as if the other survived (§ 19–504(1)). With more than two co-owners, it passes in proportion to the number of co-owners (§ 19–504(2)).
• A certified death certificate is prima facie evidence of the date and time of death, and one that shows a time of death 120 hours or more after the other person's establishes survival unless disputed (§ 19–505(2), (6)).
• The 120-hour rule gives way where the governing instrument deals expressly with simultaneous deaths or sets its own survival period, and in a few other narrow cases (§ 19–506).

Slayer rule. A person convicted of the felonious homicide of another takes no interest from them by inheritance, devise, or by remainder, reversion or executory devise dependent on that person's death; the property passes as if the convicted person had died first. Bona fide purchasers for value without notice are protected (§ 19–320).

When a situation like this is even possible, get an attorney involved before anyone lists the house.

Selling when you are the surviving joint owner or spouse

If the deed created a joint tenancy or a tenancy by the entirety and you survived, you do not need Letters of Administration to sell the house, because the deceased owner's interest did not pass through their estate. In practice:

1. Get certified death certificates. Title companies ask for one; it is also the statutory evidence of death (§ 19–505(2)).
2. Open title early and ask the title company what it needs to insure a sale by a surviving joint owner. Any affidavit or recording step is title-company practice rather than a DC statutory form, so ask for its list rather than guessing.
3. Expect the liens to stay. A mortgage, HELOC or reverse mortgage recorded against the house is still there and is paid off at closing.
4. Update the homestead deduction if you are not going to live there (see the tax section below).

The deceased owner's creditors. DC's nonprobate-transferee liability statute, which makes some non-probate recipients answer for the decedent's debts when the estate is short, expressly excludes a survivorship interest in a joint tenancy of real estate from its definition of a nonprobate transfer (§ 19–601.02(a)). For tenancy-by-the-entirety property that spouses later put into a trust, § 42–516(d)(3) says its immunity from the separate creditors of the deceased spouse continues after the first death as if the property were still held by the entirety, when the conditions of § 42–516(d)(1) were met.

Medicaid. The District's Medicaid State Plan defines the recoverable estate by DC probate law and does not take the federal option to reach property that passed by joint tenancy, survivorship or life estate. Details: how DC Medicaid estate recovery works. Confirm your own facts with counsel.

When the house was held as tenants in common

A tenant in common's share does not pass to the other owners. It belongs to the deceased owner's estate, so:

• a personal representative has to be appointed for that share (see how to open probate in DC), or it has to qualify for the small estate route;
• the sale is signed by the surviving co-owner(s) and the personal representative for the deceased owner's share;
• the deceased owner's heirs or devisees, not the surviving co-owner, receive that share of the net proceeds.

If the co-owners and the estate cannot agree on selling, the remedy is the same as for any tenants in common: negotiation first, and a court partition as the backstop. See when heirs disagree about selling and what a partition action is.

Life estates and remainders

DC recognizes estates for life (§ 42–501). A deed that gives a parent a life estate and the children the remainder creates a future estate: a remainder is an estate that commences on the full expiration of the precedent estate (§§ 42–510, 42–511). It is vested when there is a person in being who would have an immediate right to possession when the precedent estate ends, and contingent when the person or event is uncertain (§ 42–512).

• During the life tenant's lifetime, the remainder cannot be defeated or barred by any sale or other act of the life tenant unless the deed creating it expressly allowed that (§ 42–514). Practically, selling the whole house while the life tenant is alive takes the remainder owners' signatures too.
• When the life tenant dies, the life estate ends and the remainder owners hold the house. The life estate itself is not something that passes through the life tenant's probate estate.
• If a remainder owner died first, their interest does not simply vanish: expectant estates are descendible, devisable and alienable like estates in possession (§ 42–515). Depending on how the deed was written, that share may have to go through the remainder owner's own estate — a question for your attorney.

Several remainder owners who take together are, absent express joint-tenancy language, tenants in common under § 42–516(a) — so every one of them signs the sale.

Homestead, deed taxes and the sale

Homestead deduction. The DC homestead deduction applies to a house or condo that is an individual's principal place of residence, owned in whole or in part by that individual, who is domiciled in the District (§ 47–849(1)–(2)). A surviving co-owner who lives there may continue to qualify. If the property no longer qualifies — for example, nobody who owns it lives there any more — the applicant or current owner must notify the District of the change within 30 days; otherwise the deduction is rescinded for each tax year with penalty and interest (§ 47–850.02(b)(1)).

Deed taxes. The later sale to a buyer is an ordinary sale for DC recordation and transfer tax. For the rates, the property-tax class of an empty house, and income tax on the sale, see taxes on inherited DC property and the vacant estate house guide, and confirm your own numbers with a CPA.

How we help surviving owners and families

We are a District real estate brokerage, not a law firm, and nothing here is legal advice. Your attorney and your title company decide how your deed reads and what a title policy needs.

What we do is the property side: pull and read the recorded deeds with you so a tenancy-in-common or remainder surprise surfaces early, a free written opinion of value, coordination among surviving owners, estates and out-of-town family, and then either a full listing or a direct as-is cash offer — whichever nets you more. Related reading: selling a house in DC probate, the DC probate process step by step, and how an inherited DC house is valued.

Sources: D.C. Code §§ 42–501, 42–510 to 42–517 (estates in land), §§ 19–320, 19–502 to 19–506 (120-hour survival), § 19–601.02, §§ 47–849 and 47–850.02 (homestead), read at code.dccouncil.gov; and the DC Medicaid State Plan, Attachment 4.17-A. Title company requirements vary and individual cases differ — confirm anything that affects a decision with your title company or your own attorney. Nothing here is legal advice.