You will need to record a new transfer document to remove the deceased joint tenant from the ownership of the property; usually we see an Affidavit of Surviving Joint Tenant document used in this situation. A death certificate must be included. If you are unsure of the type of forms you need to use, please seek legal advice for guidance.
When a co-owner of real property passes away, what happens next depends on how the co-owners took title to the property. Upon the death of a co-owner, it is necessary to review the last deed of record to make this determination. There are three ways to own property in New York as co-owners: tenants in common, joint tenants with rights of survivorship or tenants by the entirety.
Tenants by the Entirety & Joint Tenants with Right of Survivorship
Only married couples who were married at the time they took title to the property can own property as tenants by the entirety – a type of ownership that provides certain protections. If the property is owned as joint tenants with rights of survivorship or as tenants by the entirety, the deceased owner’s interest passes automatically to the surviving co-owner by operation of law. Generally, it is not necessary to have a new deed prepared removing the deceased co-owner. When the surviving owner sells the property in the future, the deceased co-owner’s interest can be disposed of by providing his or her death certificate to the title company. If the surviving owner decides to transfer the property during life for no consideration, such as to a trust for estate planning purposes, a notation on the deed should be made by the attorney who prepares it. Upon future sale, the death certificate will still need to be provided to the title company to prove that the survivor is the legal owner of the property.
Tenants in Common
If, however, the property is owned as tenants in common or if the deceased spouse was the sole owner of the property, the deceased owner’s interest does not pass by operation of law upon death. Instead, the deceased owner’s interest passes according to his or her Last Will and Testament or according to New York Law if the decedent died without a Will.
While New York law technically provides that real property vests in the decedent’s heirs as of the date of death and can be transferred or sold by those heirs, the heirs may have issues with the title company insuring the transaction, especially within two years from the date of death. It is typically best to have an Executor or Administrator appointed to transfer or sell the property from the estate. However, in order for a fiduciary to be appointed, a probate or administration proceeding will be necessary in Surrogate’s Court.
When the Deed is Silent
It is important to note that if the deed is silent as to whether co-owners took title as tenants in common or joint tenants with rights of survivorship, the default is tenants in common. If the deed is silent but the co-owners were married at the time they took title, then it creates a tenancy by the entirety. Additionally, there are special rules when it comes to cooperative apartments. Prior to 1996, if spouses took title to a cooperative apartment, the presumption is tenants in common unless the stock certificate states otherwise. After 1996, the presumption is tenants by the entirety, unless the stock certificate states otherwise. It is important to consult with an experienced attorney to discuss these issues.
To answer your question, you do not have to change the deed if you owned the home as tenants by the entirety. Make sure to have a real estate attorney review your deed for you if there is any doubt of the ownership.
Help
- See our FAQs
- Send an email
- Call (877) 881-0947
Make your Free Affidavit of Survivorship
An Affidavit of Survivorship is a legal document that can be used to claim property that you co-own with a person who has died. If you own joint property with someone who has since passed away an... Read more
How It Works
Create your document
Answer a few simple questions to make your document in minutes
Save, print & share
Save progress and finish on any device; download & print anytime
Sign & make it legal
Securely sign online and invite others to sign
Ask a lawyer
Our On Call attorneys are here for you.
Rocket Lawyer On Call® Attorneys
Easy legal documents at your fingertips
Answer a few simple questions to make your document in minutes
Easily customizable
Make unlimited revisions and copies. Sign online. Share and print anytime.
Legal and reliable
Our documents are vetted by lawyers and legal staff, so you can use them with confidence.
Added protection with Document Defense®
If there's a dispute, an On Call attorney can respond on your behalf. Included in your Premium plan.
Try Rocket Lawyer free for 7 days
Make your Premium document today and get back to doing what you love.