Transferring Joint Tenancy Real Estate After a Death

Many people, especially couples, own their homes or other real estate in "joint tenancy with right of survivorship" (often abbreviated JTWROS) or "tenancy by the entirety" (available in some states). Both of these ownership methods give the co-owners survivorship rights, meaning that when one co-owner dies, the other co-owner automatically owns the entire property. Contrast this with a "tenancy in common," in which a co-owner's share of the property passes directly to that co-owner's inheritors or heirs upon death rather than to the other co-owner or co-owners.

Below, find out what happens to property owned by joint tenants or tenants by the entirety when one owner dies, and what steps you should take.

Who Owns the Property When One Joint Tenant Dies?

When one owner dies, property owned in joint tenancy with the right of survivorship (or in tenancy by the entirety) automatically belongs to the surviving owner or owners.

In most states, joint tenants must own equal shares; for example, you can't have one joint tenant who owns a half-interest in the property and two others who own a quarter-interest each. So if three siblings owned a house in joint tenancy, each would own a one-third interest. When one dies, the two survivors will each own a half-interest. (Only a few states allow joint tenants to own unequal shares, and only if the deed transferring the property says so.)

How to Tell If Real Estate Was Held in Joint Tenancy or Tenancy by the Entirety

To find out whether or not real estate owned by a person who's died was held in joint tenancy, check the deed. What you see might not be straightforward. With luck, you'll see something like "Stephen T. Jones and Maria L. Jones, as joint tenants with right of survivorship." You might also see:

• "Stephen T. Jones and Maria L. Jones, as joint tenants," or
• "Stephen T. Jones and Maria L. Jones, JTWROS."

If the deed simply lists two owners but doesn't say how they are taking title to the property, you'll have to find out what state law says. In some states, it's presumed that spouses intend to hold real estate as joint tenants or tenants by the entirety when they take title to it together unless the deed states otherwise. And in most states, if two people who aren't married own real estate together and the deed doesn't specify how they own it, they're presumed to own it as tenants in common rather than as joint tenants.

A note on terminology: In most states, "joint tenancy" is used synonymously with "joint tenancy with right of survivorship." However, a few states require you to use the entire phrase (or the abbreviation "JTWROS") if you want to indicate survivorship rights.

If you're not sure whether or not real estate was held in joint tenancy, get expert advice from a lawyer.

How to Transfer Joint Tenancy Property Into the Survivor's Name

Joint tenancy property doesn't go through probate (that's its biggest advantage). But even though the deceased person's share of the real estate automatically goes to the surviving co-owner(s), the real estate must still be transferred into the name(s) of the surviving co-owner(s).

Example: Jasper and Katie own a home as joint tenants with right of survivorship; each owns half the home. When Jasper dies, his half of the home automatically goes to Katie. She now owns the entire home. However, she must still take steps to transfer the home's title, which is currently in both her name and Jasper's, to her name alone.

Legally, the surviving joint tenant owns the entire property automatically, as of the moment of the other joint tenant's death. No probate is necessary, which can save significant time and money. But the deed (and the property tax statement and the homeowner's insurance bills) are all still in the names of both joint tenants, so the surviving joint tenant must take a few additional steps.

To make it clear that the surviving joint tenant is now the sole owner of the property, the survivor should document the change in the public real estate records. Those records are kept in the local land records office, which could be called:

• the County Recorder
• Register of Deeds
• the County Clerk
• the Clerk-Recorder, or
• a similar name.

Real estate law is always local; the survivor will have to find out how things are done in the county where the property is situated. Generally, though, the survivor will need to record (file) one or both of these documents with the local land records office:

• a sworn statement, signed by the survivor, stating that the survivor is now the sole owner of the joint tenancy property, and
• a certified copy of the death certificate.

The statement is often called something like:

• "Affidavit – Death of Joint Tenant"
• "Affidavit of Joint Surviving Tenant," or
• "Affidavit of Surviving Spouse for Change of Title to Real Estate."

Most offices will require this statement to be notarized. Typically, the statement is about a page long and contains:

• a legal description of the property (copied from the deed)
• a statement that the property was held in joint tenancy
• a reference to the deed that transferred the property to the joint tenants, including its date and where it was recorded (filed) in the local land records office
• the name and date of death of the deceased joint tenant, and
• the name and signature of the surviving owner.

Your state or county might require additional documents. To find out the requirements in your county, call or check the website of the local land records office, talk to someone at a title company, or consult a probate lawyer.