This is the seventh episode of our new video series covering the right of survivorship among co-owners.
The prior episode covers how a co-owner vested as a joint tenant or as community property with the right of survivorship unilaterally severs the right of survivorship.
Termination of interest on death
When the co-ownership of property is vested as joint tenants or community property with right of survivorship, the death of a co-owner automatically extinguishes the deceased co-owner’s interest in the real estate. Thus, the surviving co-owner(s) become the sole owner(s) of the property.
However, title to the deceased co-owner’s interest in the property needs to be cleared away before the surviving co-owner will be able to properly sell, lease or encumber the property as the sole owner.
The new ownership interest of a surviving joint tenant, clear of the deceased’s interest, is documented by simply recording an affidavit, signed by anyone, declaring the death of a joint tenant who was a co-owner, attaching a death certificate and describing the real estate. [See RPI Form 460]
Likewise, the half interest in community property held by the deceased spouse at the time of death vested as community property with right of survivorship is extinguished by the same affidavit procedure used to eliminate the interest of a deceased joint tenant — except that the surviving spouse (or the surviving spouse’s representative) is the only one authorized to make the declaration. [See RPI Form 461]
Once the affidavit is notarized, recorded and indexed, anyone conducting a title search on the property will have notice of the joint tenant’s death since the deceased joint tenant is indexed as a grantor. Thus, the surviving joint tenant becomes sole owner of the property due to the right of survivorship. [See RPI e-book Legal Aspects of Real Estate, Chapter 27]
On a simple community property vesting, when no one contests the surviving spouse’s right to become the sole owner of the deceased spouse’s interest in the property, the surviving spouse needs to wait 40 days following the death before the property may be sold, leased or encumbered.
After 40 days, an affidavit by the surviving spouse is recorded to clear title by declaring the death and attaching a death certificate. [See RPI Form 461]
Editor’s note – Stay tuned for further coverage on this topic.
