The Transfer of Property Deed Upon a Spouse's Death

By Marie Murdock

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.

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.

Protect your loved ones. Start My Estate Plan

Intestate Administration

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.

Heirship Affidavits

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.

Protect your loved ones. Start My Estate Plan
How to Transfer a Deed to a House if the Owner Dies Without a Will

References

Resources

Related articles

What Is an Heir Affidavit?

In many cases, a person dies without a will, or the will is declared invalid by a probate court. In such cases, distribution of the decedent's property proceeds under the state's intestate succession laws. If the decedent owned real estate, the estate must transfer title to the real estate to the rightful heirs. An heir affidavit is a document containing sworn statements designed to prove that the person named in the affidavit is a legitimate heir under state law. This permits title to real estate -- and in some states, personal property -- to be transferred to that heir.

How to Find Out If Someone Left a Will for Probate

A will is a written document that specifies how a person wishes his estate to be divided. After the testator dies, the will is commonly subject to court proceedings known as probate. Relatives and other potential heirs may find it necessary to locate a will, especially when challenging or questioning the estate proceedings; others often find wills useful when researching family trees. Wills and estate proceedings are typically filed in the probate court of the county or counties in which the deceased had a connection, such as residence or property holdings.

Can an Inherited House Be Sold by the Executor in Florida Without Knowledge or Consent?

In Florida, one of the many duties of an executor includes paying the decedent's creditors with estate assets. Sometimes, an executor may sell real estate without the heirs' or beneficiaries' permission. However, the circumstances under which the executor may sell real estate without approval of a probate court are limited.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

What Is an Executor Deed?

An executor’s deed is used to transfer real property from the estate of a deceased person to an heir pursuant to the ...

How to Write a Deed With Power of Attorney

A real estate deed is a document representing legal ownership of a parcel of real estate. To transfer ownership of real ...

How to Transfer Real Property After Death in the State of Florida

You may be the surviving spouse or child of someone who died owning real estate in Florida. Whether you desire to keep ...

Administrator Responsibilities for Estate Sales Without a Will

When a person dies without a will, the state probate court will appoint an individual to oversee the transfer of his ...

Browse by category
Ready to Begin? GET STARTED