One spouse may handle all business and financial transactions during a marriage, including the acquisition of property. If that spouse dies unexpectedly, the surviving spouse may be unaware of what steps, if any, need to be taken to transfer real estate. The surviving spouse may also be unaware the deceased spouse's children or other heirs may have acquired an interest in the property at death.
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Rights of Survivorship
If property was conveyed to both spouses through a joint deed, with right of survivorship, the property automatically transfers to one spouse upon the death of the other. A new deed or probate action is unnecessary under these circumstances, although a surviving spouse may choose to file an affidavit or other evidence of death in the real property records to evidence the transfer of the property.
Last Will and Testament
Tenancy in common is a form of co-ownership in property where each owner's undivided interest does not automatically pass to the remaining co-owner upon death. If the couple owned property in this manner, and the deceased spouse left a will, the will should be probated, as provided by state law, in the county where the property lies in order to fulfill the wishes of the decedent. A will generally conveys property to those named to inherit, subject to any debts or claims against the estate. Therefore, it may not be necessary, but is often desired, for the will's executor to sign an executor’s deed to those parties after probate is complete. An executor may also fulfill her responsibilities to the estate by conveying the property by executor's deed to an unrelated third party for cash to be paid to the named heirs or claimants as directed in the will.
If property was not owned with right of survivorship and the deceased did not leave a will, estate property will pass by virtue of the state’s intestacy laws. Often, even without a will, a probate court proceeding will need to be initiated to produce clear, marketable title to estate property. If probate is initiated without a will, the court will appoint as administrator someone who has petitioned the court and qualifies under state law to serve. The administrator may petition the court to sell or deed property to a willing purchaser for either payment of debts, division among heirs or other reasons authorized by the court. If the court grants the petition, an administrator’s deed may be executed pursuant to the court’s order.
Intestacy laws vary greatly from state to state, but most states provide for the surviving spouse to inherit the largest portion of the deceased spouse's assets. If it has been several years since the deceased spouse's passing, and the surviving spouse or other heirs have continued to pay taxes on the property and manage it without incident, heirship affidavits may be executed by unrelated parties as proof of the identities of the surviving heirs. Based on these heirship affidavits, the heirs may execute a deed to the surviving spouse or a third party. State laws may vary regarding property conveyed by heirs without probate. Anyone attempting to convey property in this manner should first consult with an attorney familiar with intestate transactions.
References & Resources
- The Money Alert: Joint Tenancy
- Gaprobate: Georgia Probate Proceedings, “What to do When Your Loved One Dies?”
- The Superior Court of California, County of Santa Clara: About Probate - How to Probate a Decedent's Estate
- Lawriter, Ohio Laws and Rules: 5302.09 Deed of Executor, Administrator, Trustee, Guardian, Receiver, or Commissioner Form.
- MALawForum.com: Executor Deeds and Tax
- VirginiaEstateLaw.com Newsletter: Sale of Real Estate in Decedent’s Estate
- LoneStarLandLaw.com: Affidavits of Heirship in Texas Intestacy Cases
- Auburn University, Agricultural Economics and Rural Sociology: Glossary
- Living Trust Network: Intestate Succession | State Intestacy Laws
- Pixland/Pixland/Getty Images