How to Transfer a Deed to a House If the Owner Dies Without a Will

By Christine Funk, J.D.

How to Transfer a Deed to a House If the Owner Dies Without a Will

By Christine Funk, J.D.

When someone passes away without a will or other estate planning in place, the laws of the state govern who stands to inherit their property. Some property, such as household goods, can be acquired simply by taking possession of it. Other property, however, such as the deed to a house, requires the transfer of ownership by filing a new deed. While different states have different requirements in certain circumstances, there are some things that remain constant.

Property deed

If You Are Bypassing Probate

If you are not selling the home and are simply looking to transfer the deed to the house to a new owner/heir, the home may be able to avoid the probate process. Different states have different rules for when an estate must be probated. If you are able to bypass probate, follow these steps.

1. Identify all legal heirs.

Each state has its own laws about the order of inheritance in cases where there is no will or other estate planning document. Typically, the primary heir is the person's spouse. In some states, the spouse shares the estate with the children of the deceased. This may depend on whether the children are issue of a prior relationship.

When there is no surviving spouse, the children are the primary heirs. If there are also no children, parents and then siblings stand to inherit.

2. Prepare heirship affidavits.

Next, you must prepare heirship affidavits, which detail the names of all heirs you identified in the previous step.

Two parties who do not stand to inherit but are familiar with the family and family lineage must sign these documents as witnesses. These affidavits must be signed before a notary public, who notarizes the documents.

3. Prepare the deed.

Prepare the deed transferring ownership from all the heirs to the new owner. You must include a declaration that the signers are all heirs of the deceased. A word of caution: this can only be done if all heirs are legally of age and of sound mind. The deed must contain the proper legal description of the property.

All heirs must sign the deed, and a notary must witness the signing. The heirship affidavits along with the signed and notarized deed must be filed with the land records department in the county where the property is located.

If You Are Going Through Probate

If you are selling the home to distribute the funds to the heirs and the estate needs to go through probate, follow these steps.

1. File a petition in probate court.

The first step to transferring the property to the rightful new owners is to open up a case in probate court. You must first file a petition for administration of the estate in the county where the property's owner lived before they passed away. A relative or attorney may file this petition on behalf of the family.

While petitions vary from state to state, generally they call for the identity of all heirs of the estate, a statement that the heirs are of sound mind, and a list of who is and is not over the age of majority in the state. The petition also includes a request the court give the petitioner authority to probate the estate with an acknowledgment there is no will or other estate planning document in existence.

Take a moment to examine the requirements of the jurisdiction. Some states require the person who applies to be the administrator of the estate be a resident of the state.

2. Petition the court for sale and convey the property to the purchaser.

Next, you must petition the court to sell the property. The proceeds of the property must first go to paying any debts of the estate with any remainder going to the heirs. As such, expect the court to order the money from the sale be paid to the court for subsequent distribution to the heirs once the debts are paid.

After obtaining court approval, convey the deed by an administrator's deed pursuant to the court order to the purchaser. Depending on the state, you may also need to file an administrator's report detailing the sale with the court.

Once the sale is complete, record the deed in the land records office in the county where the property is located. Distribute the proceeds to the heirs in accordance with the order of the court.

For further assistance with estate planning or transferring property, you may want to consult with an attorney or an online service provider.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.