DO I NEED TO RE-TITLE REAL ESTATE FOLLOWING THE DEATH OF AN OWNER?
- posted: Aug. 03, 2022
One of the most frequent questions I get in the probate process is whether or not a Deed needs to be changed following the death of the Decedent, and who is responsible to make the changes? The answer is often found in the Deed itself, or is at other times resolved by the sale of the property from the estate. I will give the most frequent examples:
Very often, a Deed is written in joint names, such as the following: “Robert Smith and Mary Smith, his wife, as tenants by the entireties,” or “Stephen Davis and Bethany Marks, joint tenants, with right of survivorship.” In either of these circumstances, the survivor takes the entire property at the instant of death without any requirement that the Deed be changed. As and when the survivor decides to sell the property, the buyer’s title company or attorney would ask to see a Death Certificate for the deceased joint owner, and would hen immediately recognize that the survivor owns the entire property by operation of the deed. The surviving joint owner may validly transfer title in his/her own name without the need for an additional Deed transferring the property to the survivor.
Where there is no joint tenancy, once the estate is opened and a Personal Representative has been appointed, the Personal Representative had the legal authority to transfer title in the name of the estate using his/her authority as the Personal Representative without the need for a deed to the Personal Representative. Once closing on the property is scheduled, the buyer’s title attorney will prepare the appropriate Deed from the estate, to be signed by the Personal Representative, transferring the property to the buyer.
Thus, in most situations, the death of a property owner does not require any immediate action by the heirs or estate to resolve questions regarding ownership. The deed and title issues are resolved by operation of the deed, or by the powers conferred upon the Personal Representative.