Many people want to remove a deceased owner from title to real estate after the owner’s death. This is often done to clear up tax records or to allow the surviving owners to deal with the property.
Removing a deceased owner can be very simple or very complicated, depending on the circumstances. At the outset, it is important to determine how the deceased owner held title to the property. This requires a close examination of the deed that transferred the property to the deceased owner.
If the deceased owner was the only owner, it is likely that probate or an alternative to probate will be required. If the property was held with a surviving spouse or other co-owner, an Affidavit of Survivorship may be used to avoid probate. These options are discussed in more detail below.
Using an Affidavit of Survivorship to Remove a Deceased Owner from Title
In the best case scenario, an Affidavit of Survivorship can remove the deceased owner’s name from the property. An Affidavit of Survivorship—sometimes referred to as an Affidavit of Surviving Joint Tenant or an Affidavit of Surviving Spouse—is a simple document used to remove a deceased owner from title to real estate. An Affidavit of Survivorship can only be used if these conditions are satisfied:
- The deceased owner held title to the property with a spouse other owners;
- The property was titled with a right of survivorship;
- The spouse or at least one of the other co-owners survived the deceased owner.
Review the prior deed to the property (the deed that transferred the property to the deceased owner) to determine whether other owners are listed on the deed.
If the deceased owner owned the property with his or her spouse or with other owners, you will need to examine the deed determine whether the deed was titled with right of survivorship. There are three situations where co-owners hold title with right of survivorship:
- Both spouses and non-spouses may hold title as joint tenants with right of survivorship. Look for language like “joint tenants with right of survivorship.”
- If you are in a common law state (like Florida), spouses may hold title as tenancy by the entirety. Look for the phrase “husband and wife” or “tenancy by the entirety.”
- If you are in a community property state (like Texas or California), spouses may hold title as community property with right of survivorship. Not all community property contains a right of survivorship, so look for the phrase “right of survivorship.”
If the deed included survivorship rights, and if the other owners named in the deed survived the deceased owner, you can usually use an Affidavit of Survivorship to remove the deceased owner.
A Note on Deeds to Remove Deceased Owner
We sometimes get questions from customers who are looking for a deed to remove a deceased owner. Some have been told by a government clerk that they need a quitclaim deed to remove a deceased owner from title to real estate. As a preliminary matter, it is important to note that county clerks are not attorneys. Although most of them are competent and experienced, there are many who are not. County clerks are not always correct and, in any event, should not be giving legal advice.
The problem with using a deed to remove a deceased owner comes from the simple fact that the owner is deceased. Because the owner is deceased, he or she cannot sign the deed to transfer title to the new owner. In order for someone to sign on behalf of the deceased owner, he or she would need legal authority to do so. The only way to get legal authority to act on behalf of a deceased owner is to open a probate proceeding as described below. This hassle can be avoided by simply using an Affidavit of Survivorship.
Probate and Alternatives to Probate
Probate is a legal proceeding to transfer a deceased owner’s interest to his or her heirs. A probate proceeding usually requires at least one filing with the court, possibly many more depending on the state. Many states require an attorney to assist with the probate process in most situations.
Some states allow alternatives to probate that can be used in limited circumstances. In Florida, for example, a Summary Administration is available if the deceased owner has been dead for over two years or if the value of the entire estate subject to administration in Florida—less the value of property exempt from the claims of creditors—does not exceed $75,000. Whether an alternative to probate is available is a fact-specific determination that usually requires an attorney.
Probate—or an alternative to probate—will usually be required if any of the following are true:
- The deceased owner was the only owner listed on the prior deed to the property;
- The deceased owner held title with multiple owners as tenants in common; or
- The deceased owner held title with multiple owners, but none survived the deceased owner.
In these situations, there is no right of survivorship to automatically transfer title to the real estate to the surviving owners. This means that some legal documentation is needed to transfer title.
It can be complicated to determine whether probate is required and, if so, the steps needed to move the estate through the probate process. It is best to speak to an attorney about these options.