Many people, especially couples, own their homes or other real estate in "joint tenancy." Holding title this way is often a good idea, because it allows a quick and easy transfer to the survivor when one co-owner dies. Joint tenancy property doesn't go through probate (that's its biggest selling point), but as executor you may be asked to help with getting the property into the name of the surviving co-owner.
Many couples also hold property in "tenancy by the entirety." It's similar to joint tenancy, but is available only to married couples (or couples who have entered into a registered domestic partnership or civil union) in about half of the states.
When one co-owner dies, property that was held in joint tenancy with the right of survivorship automatically belongs to the surviving owner (or owners). The owners are called joint tenants. 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; if one died, the two survivors would each own a half-interest. Colorado, Connecticut, Ohio, and Vermont, however, allow joint tenants to own unequal shares.
To see whether or not real estate owned by the deceased person was held in joint tenancy, check the deed that transferred the property into the names of the joint tenants. What you see may not be completely easy to understand. 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:
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 unless spouses state otherwise, they intend to hold real estate as joint tenants when they take title to it together.
If you're not sure whether or not real estate was held in joint tenancy, get expert advice from a local lawyer.
Legally, the surviving joint tenant owns the entire property, automatically, as of the moment of the joint tenant's death. But the deed (and the property tax statement and the homeowner's insurance bills) are all still in the names of both joint tenants.
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 may be called the County Recorder, Register of Deeds, or other 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:
The statement is often called something like “Affidavit –Death of Joint Tenant” or “Affidavit of Surviving Spouse for Change of Title to Real Estate.” It may need to be notarized, in which case it's called an affidavit; in some states, it only needs to be signed “under penalty of perjury” and is called a declaration.
Typically, the statement is about a page long and contains:
Additional documents may be required by your state or county. To find out what documents are needed in your state, check the local court's website, talk to someone at a title company, or consult a local probate lawyer.