Affidavit of Death of Joint Tenant by Surviving Joint Tenant
Description
Key Concepts & Definitions
Affidavit of Death of Joint Tenant by Surviving refers to a legal document filed by the surviving joint tenant in situations where property is held in joint tenancy. Upon the death of one joint tenant, this affidavit is used to remove the deceased party from the property title, officially transferring ownership solely to the surviving joint tenant. It serves to assert the death and update property records correspondingly.
Step-by-Step Guide
- Obtain a certified copy of the death certificate: This is crucial as proof of death must be submitted with the affidavit.
- Complete the affidavit form: Accurately fill out the affidavit, which includes details about the deceased, the property, and the surviving joint tenant.
- Have the document notarized: This legalizes the document, making it valid to be recorded with local authorities.
- File with the county recorders office: Submit the notarized affidavit along with the death certificate to the appropriate local office that manages property records.
- Verify record update: Check that the property records reflect the new ownership status.
Risk Analysis
Key risks include
- Errors in the affidavit: Incorrect information can cause delays or legal challenges.
- Failure to record in a timely manner: Delays can lead to issues with taxes or with future transactions.
- Legal disputes: Potential disputes might arise from other heirs or mistakenly claimed ownership.
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FAQ
When joint tenants have right of survivorship, it means that the property shares of one co-tenant are transferred directly to the surviving co-tenant (or co-tenants) upon their death. While ownership of the property is shared equally in life, the living owners gain total ownership of any deceased co-owners' shares.
When one joint owner (called a joint tenant, though it has nothing to do with renting) dies, the surviving owners automatically get the deceased owner's share of the joint tenancy property.
When a property is owned by joint tenants with survivorship, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. For example, if four joint tenants own a house and one of them dies, each of the three remaining joint tenants ends up with a one-third share of the property.
Converting a property share in a joint tenancy to a TIC is known as "unilateral conversion." California and other states allow owners in joint tenancies to unilaterally convert their shares to TICs simply by transferring their property interests to themselves.
In order to sever the right of survivorship, a tenant must only record a new deed showing that his or her interest in the title is now held in a Tenancy-in-Common or as Community Property.
What is the right of survivorship? When a joint tenant dies, his or her interest in the asset vests in the surviving joint tenant or joint tenants. In other words, if two people own real estate in joint tenancy, and one of them dies, the surviving joint tenant then owns 100 percent of the property.
A survivorship deed, or a joint tenancy with right of survivorship, is much more difficult to contest than a will bequeathing property to beneficiaries. However, one circumstance in which a survivorship might be successfully contested is when the document granting right of survivorship has not been properly drafted.
Severing the Joint Tenancy If you are a Joint Tenant, this means that on the death of one tenant, his or her share automatically passes to the surviving tenant. If you do not wish this to happen, then the Joint Tenancy must be severed to create a Tenancy in Common.