Remove a Deceased Person from a Deed

When a property owner dies, removing her name from the deed can be a complicated and confusing procedure. However, it is necessary to keep a clear title to the property. What you actually need to do is transfer title to the new legal owner.[1] The value of the property, how it is titled, who has inherited it, and whether the decedent had a will or not will determine the procedure. The process is completely dependent on your local recording office. You may be able to avoid paying an attorney by following some simple steps, but make sure you look online at your specific recorder’s office to find information about the specific process and any fees that will be charged in your area.

Steps

Determining the Type of Deed

  1. Obtain a copy of the deed to determine how the property is titled. If the decedent does not have a copy of the deed, one can be obtained from the county recorder’s office for a small fee.[2]
  2. Recognize that sole ownership could be problematic. With sole ownership, only one person (the decedent) owns the property. This means that upon the person’s death, the property deed will likely need to go through the probate process instead of passing more easily to another person.
  3. Look for joint tenancy. In a joint tenancy, more than one person owns the property equally. That means when one owner passes away, rights to the property are transferred to the surviving tenants equally. However, not all states recognize joint tenancies.
    • Joint tenancy with a right of survivorship is a type of joint tenancy that specifies that upon one owner’s death, the property is owned outright by the survivors. This is more widely accepted than a joint tenancy without a survivorship specification.
    • For example, if Jill and Jim own property as a joint tenancy with a right of survivorship and Jill dies, Jim is the new owner of the property. This is automatic, and the property does not go through probate with the rest of Jill’s estate.
  4. Differentiate between joint tenancy and tenancy in common. Tenancy in common also occurs when there is more than one owner on a property. However, with a tenancy in common, ownership percentages need not be equal and upon the death of one tenant, the property passes to their heirs instead of to the other property owner.
    • For example, if Jill and Jim own property as tenants in common, and Jill dies, her portion of the property will not pass to Jim, but instead will pass through the probate process to her heirs or to her beneficiaries named in her will.
  5. Understand tenancy by entirety. Tenancy by entirety is nearly always applied only to spousal ownership. In this instance, neither tenant may make property changes automatically without the consent of the other. In the case that one tenant is deceased, the surviving owner is the full owner of the property.
    • For example, if Jill and Jim are married and own a house and Jill dies, ownership of the house will pass automatically to Jim, and he will be the full and only owner of the house, even without going through the probate process.

Removing the Deceased from a Sole Ownership Deed

  1. Determine who the new legal owner of the property should be. If the decedent left a will, naming one or more beneficiaries of the property, the beneficiaries are the new owners. If the decedent died intestate (without leaving a will), check your state’s intestate inheritance statute[3] to determine to whom the property passes.
    • In most common law states, property passes through the state’s intestacy laws to the decedent’s spouse and heirs. The amount of the estate awarded to each heir and any surviving spouse is specific to the state’s intestacy laws.
    • In a community property state, a surviving spouse (if applicable) is typically entitled to half of the community property, which is defined as all property that was acquired during the marriage.
  2. Remove the deceased owner’s name from the property through probate. If the new owner to the decedent’s property is found in the decedent’s will, the will must be probated in order for the property ownership to change.[4] The will should be filed with the probate court and the executor of the estate will commence with the probate process.
    • For example, if Jill was the sole owner of her house, and left her house to her friend Mary after she died, the executor of Jill’s estate would submit Jill’s entire estate (including her house), to probate.
  3. Wait for the title to be clear. When probate is concluded, the judge will typically order that “clear title” is transferred to the beneficiaries under the will. Then, the order is recorded just like a deed would be.
    • While clear title is usually issued at the time the estate is closed, in some states, such as California, you can petition the court to order that the title should be recorded in your name before probate closes, if you can provide evidence that you are entitled to the property.[1]

Removing the Deceased without Probate

  1. Determine the appropriate owner of the property.[5] If the property is owned as a joint tenancy with the right of survivorship, a tenancy by the entirety, or a tenancy in common where the deceased owner left the property to the other owner or owners of the property, the deed can be changed without going through probate.
  2. Obtain a death certificate. The surviving owners of the property will be required to submit a certified death certificate proving that a person who owns the property is deceased.
    • To get a copy of the death certificate, you can either ask for one from the mortuary or funeral home where the decedent’s final arrangements were carried out, or, if you are unable to get a copy at the time of the death, you can contact your state’s vital records office and request a copy.[6]
  3. Write or fill out an affidavit of ownership. If there were more than two owners besides the decedent, you may be required to file an affidavit of ownership.[7]
    • An affidavit of ownership is simply a document that you use to prove that you own the property. Check with your local authorities for additional detail if you believe that you may need to file this type of affidavit.
    • You can build and print your own Affidavit of Ownership here. The basic information you will need to include on the affidavit includes:
      • A legal description of the property
      • Statement of ownership (include all owners and information about how ownership passed from the deceased to the new owners)
      • A statement describing the possession history of the property and whether there have been any title disputes or liens.
      • The purpose of the affidavit
      • Your signature (or the signature of all owners)
    • The affidavit should be signed in front of a notary public, who should then notarize the document before you submit it to the courthouse.

Obtaining a New Deed

  1. Obtain a new deed. A person cannot really be "removed" from a deed; rather, to remove someone from a deed, a new deed without the deceased's name must be issued. The new deed should be signed and notarized by all new owners of the property. To get a copy of the deed, you can do one of the following steps.
  2. Go to the courthouse. Deeds are typically kept in the probate court, and you can generally get a copy of your deed for a small fee.
    • You can search by your name, the property address or the legal description of the property.
  3. Mail or fax your deed request. The fees for mailing and faxing are usually similar to the fees you would pay to get a deed in person.
    • Check with the court that your deed was recorded in to see if they accept requests by mail or fax.
  4. Look online. Many counties allow parties to retrieve copies of a deed online, sometimes for free.
    • For example, Wayne County, Michigan charges $5.00 to search for deeds online and an additional $1.00 to print copies, while Georgetown County, South Carolina, has a free deed search online.
  5. Use a title company. In some states, title companies do home closings and record deeds. So, if you do not want to personally find a copy of your deed, the title company can do it for you.
    • Expect to pay around $100.00 for this service, plus any additional fees from copying the deed.
  6. Use an attorney. A real estate attorney can find a copy of your deed for you. Additionally, the attorney can help you facilitate the process of removing the deceased owner’s name from the deed.



Warnings

  • If property is left in a will, the executor should make sure that the title to the property is “clear.” That is, the title should be free of liens or other debts against the title of the property.
  • This article is for information purposes only. If you have any questions, contact a real estate or trusts and estates attorney.
  • Some states require that you hire an attorney to probate an estate, but allow you to file small estate and survivorship/succession affidavits without the assistance of counsel. Check with your county clerk’s office to determine if you are required to hire an attorney.
  • You should consult an attorney or certified public accountant to determine if inheritance or estate taxes will be due before transferring title to any property.

Sources and Citations

  1. ↑ 1.0 1.1 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13100-13116
  2. ↑ http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/2011_summer/real_property_interests_deeds.html
  3. ↑ http://www.nolo.com/legal-encyclopedia/how-estate-settled-if-theres-32442.html
  4. ↑ http://info.legalzoom.com/transfer-deed-left-will-4747.html
  5. ↑ http://www.deedclaim.com/florida/avoid-probate/
  6. ↑ https://www.health.ny.gov/vital_records/death.htm
  7. ↑ https://www.rocketlawyer.com/document/affidavit-of-ownership.rl
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