Whenever people own property as joint tenants, or tenants by the entireties, and one of them dies, then you clear title in the survivors with an affidavit of survivorship.
People often create joint tenancies in real estate in order to avoid probate. The joint tenants are often relatives. However, only married couples can own property as tenants by the entireties.
The way you tell what kind of tenancy you have is by looking at the deed. The deed will always have language that says something like “convey [or quitclaim] to John Doe and Jane Smith as joint tenants [or] tenants by the entireties [or] tenants in common.”
If the deed does not say any of those three things, or if it says something else, then you should call a probate lawyer.
If the deed says tenants in common, then you cannot use an affidavit of survivorship. You will have to probate the estate, or use a petition for distribution if the estate is small.
However, if the deed says joint tenants or tenants by the entireties, then you are in good shape. The affidavit of survivorship is a simple document that many people can prepare themselves.
What information do you need for an Affidavit of Survivorship?
In order to draft this affidavit, you will need a copy of the deed for the property. This needs to be the most recent deed. The deed that created the joint tenancy or the tenancy by the entireties.
You will also need a certified copy of the death certificate of the person whose name you want to remove from the title.
What goes into an Affidavit of Survivorship?
The Affidavit of Survivorship is made up of five parts. These are described briefly below.
Names of the survivor(s) and the legal description of the property
The names need to be listed exactly as they are in the deed. The legal description needs to written exactly as it is in the deed.
Referencing the creation of the tenancy
In this section you reference the last deed. Who conveyed the property to the current owners, when that was done, and when the deed was recorded. This is why you need a copy of the most recent deed.
If there is a tenancy by the entireties, then reference the date of marriage, and state that the couple was still married at the time that one of the owners died.
Identifying the date of death of the deceased tenant
You need to identify when the joint tenant died, and reference the date of their death certificate. This is one of the reasons you need the death certificate.
Identifying the surviving tenant(s)
This last section lists the names of the surviving tenant or tenants. If one of the surviving tenants now has a new name, by marriage or divorce, then you would include their new name here. Say, Jane Doe, nka Jane Smith.
Executing the Affidavit of Survivorship
All of the surviving tenants will then have to sign the affidavit in front of a Notary.
Recording the Affidavit of Survivorship
Finally, the fully executed affidavit, and the certified copy of the death certificate, must be recorded at the County Clerk’s land records office. You will have to pay a recording fee, which is currently $15 for the first page and $3 for each additional page.
So that’s it. Once the affidavit is recorded, the title will be cleared in the name of the survivors.