When is it necessary to have a new deed prepared?

The Facts:  My husband, Fred, died recently. We are both on the deed to our house.

The Questions: Do I need to change the deed?

The Answer: Whether you need to change the deed depends on how you and Fred took title to the property when you first purchased it. You and Fred were co-owners of your property but, the ownership interest of co-owners of real property can be expressed on a deed in different ways.

Two or more co-owners can each own a specific percent of the property For example, two owners can each have a 50% interest in the piece of property. Each owner can dispose of his/her 50% interest as he/she pleases. Owners with this sort of arrangement are referred to as tenants in common.

Two or more people can also own property jointly with the right of survivorship. Such co-owners are referred to as joint tenants and the deed to the property will include the words “joint tenants with the right of survivorship” or “jt. tenants WROS”. Each joint tenant has an interest in the entire property and generally cannot dispose of their interest in the property without the consent of the other joint tenants.

Finally, when a married couple takes title to real property, they can do so jointly as tenants in the entirety. This designation is similar to jt. tenants WROS but, is only an option for married couples.  

If you and Fred took title to your home as 50/50 tenants in common, a new deed should be prepared by which the executor or administrator of Fred’s estate transfers his 50% interest in the property to the person he named as the beneficiary in his will or the person entitled to his share under the intestacy statute. The new deed must be signed by the executor/administrator and filed/recorded in the office of the county clerk in the county in which the property is located.

If you and Fred held the property as joint tenants WROS or as tenants in the entirety, there is no need to change the deed. You became the sole owner of the property upon Fred’s death by operation of law. In other words, Fred’s ownership interest in the property was extinguished when he died and you automatically became the owner.

If you sell the property, you will need to provide proof that Fred died.  Without such proof, the deed bearing only your signature will not be accepted for recording. If your house is not sold until after you die, the person selling your house will have to provide both Fred’s death certificate and letters testamentary or letters of administration from the surrogate’s court to establish that he/she has the authority to sell the property.

If you are still uncertain as to whether a new deed is needed, you should contact an attorney with experience in real estate who can review your deed and advise you as to how to proceed.  

This article first appeared in the Times Beacon Record Newspapers in Sept. 2020.

Linda M. Toga, Esq provides legal services in the areas of real estate, estate planning and administration, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]. She will respond to messages and emails as quickly as possible.