SURVIVORSHIP AFFIDAVIT

A survivorship affidavit (sometimes called an affidavit of death or affidavit of continuous marriage) is a legal document used to remove a deceased owner from title to property by recording evidence of the deceased owner’s death in the land records. The purpose of a survivorship affidavit is to clear up the land records by letting third parties—including title companies, lenders, and the property tax officials—know that an owner has passed away and that you now own the property without that owner.

Many people want to remove a deceased owner from title to real estate after the owner’s death. Removing a deceased person from a property deed clears up the land and property tax records and allows the new owners to deal with the property.

Removing a deceased owner can be very simple or very complicated. 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

If you are already listed as a co-owner on the prior deed—or if you inherited an interest in the property through a life estate deed, transfer-on-death deed, or lady bird deed—you may use an affidavit of survivorship to remove the deceased owner.

What is an Affidavit of Survivorship?

An affidavit of survivorship is a legal document used to remove a deceased owner from title to property by recording evidence of the deceased owner’s death in the land records.

The purpose of an affidavit of survivorship is to clear up the land and tax records by letting third parties—including title companies, lenders, and the property tax officials—know that an owner has passed away and that you now own the property without that owner. It can be used in two situations:

While the deceased owner was alive, you and the deceased owner jointly owned the property as joint tenants with right of survivorship, tenants by the entirety, or community property with right of survivorship.

You did not own jointly own the property with the deceased owner while the deceased owner was alive, but the deceased owner named you to inherit the property through a life estate deed, TOD or beneficiary deed, or lady bird deed.

An affidavit of survivorship is sometimes called a survivorship affidavit, affidavit of surviving spouse, affidavit of surviving joint tenant, or affidavit of continuous marriage. These terms all refer to the same instrument.

How Do I Know if I Can Use an Affidavit of Survivorship?

To determine if you can use an affidavit of survivorship, review the most recent deed to the property.

If you are listed as a beneficiary under a life estate, lady bird, or TOD deed, look at the deed that gave you an interest as a beneficiary.

If you co-owned the property with the deceased owner, review the deed that transferred the property to you and the deceased owner. Look for language that creates a right of survivorship.

How Can I Tell if I Have a Right of Survivorship?

The only way to confirm that you have a right of survivorship is to review the deed. There are three ways you may hold title with right of survivorship:

Joint Tenants 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.”

Tenants by the Entirety (Spouses Only). If you are in a state that recognizes tenancy by the entirety (see below), you can use a survivorship affidavit to remove your deceased spouse from the deed. Any language that indicates that you were married when you acquired the property should be enough. Look for the phrase “husband and wife” or “tenancy by the entirety.”

Community Property with Right of Survivorship (Spouses Only). If you are in a community property state (see below), you 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.

What States Recognize Tenant’s by the Entirety?

These states recognize tenancy by the entirety: Alaska, Arkansas, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming.

What States are Community Property States?

The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

A Note on Deeds to Remove Deceased Owner

We sometimes get questions from customers 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 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. 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. If you do not qualify to use an affidavit of survivorship, it is best to speak to an attorney about your options.

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