How to submit an affidavit of death of joint tenant?

April 28, 2022

Joint Tenant concept – A brief

Joint tenants mean that two people buy, register, and own the property in equal proportion and have equal rights to the property. In general, this concept is applicable within the family, both the spouses and brothers/sisters like that. However, it could be otherwise too. 

In this category, each of the owners have a type of shared ownership of property, where each owner has a complete interest in the property. This creates a right of survivorship, in other words, when one owner demises, the other owner owns the demised owner’s share too. 

The property is undivided and hence it cannot be given to any other person. In the joint tenants’ concept, both the owners have equal rights to the complete property and the ownership. 

One cannot write a “will” in Joint-tenants’ properties to pass on to others. Therefore, The affidavit of death of Joint Tenant – a factor that must be taken into consideration is that both the owners have equal and undivided rights irrespective of the proportion of contribution when they buy the property or payment of mortgage towards the property.

Affidavit of Death of Joint Tenant – A brief:

A property could be bought as tenants in common with unequal proportions of the property. There could be up to four legally named owners for a given property under Tenancy-in-common.

Tenancy in Common is a little different from the Joint tenant concept. Tenancy-in-common has no rights of survivorship, unlike Joint Tenants. In Tenancy-in-Common the deceased person’s “Will” is valid and the said property could be entered by another person apart from the surviving owner at a later part. Tenants in common are a little complicated in the registration process over the Joint Tenants. 

The affidavit of death of a joint tenant requires more process and paperwork, it is preferable to do a Declaration of Trust which would detail the financial contribution and interests of every owner involved during property registration. 

Declaration of Trust would also list down the clauses pertaining to the selling of property, detailing the arrangements so that every owner’s interests are protected.

Affidavit of Death of Joint Tenant – Usage

Tenants-in-Common are chosen over Joint-Tenants for the following reasons.

The members of the same family would choose Joint-Tenant over Tenancy-in-Common. But the Business owners/partners would prefer to have the property under Tenancy-in-Common as they would be interested in writing a WILL so that their share could be passed on to their kith and kin or according to their choice of owners. 

Another scenario could be with married couples too. Possibly each of the spouses may have kids from their previous marriage partners and he/she would like to have his/her share be passed on to the children from their previous marriage. 

Business partners – where each business partner wants their share of the property to pass to their family in accordance with their Will as opposed to the other owner who may be just their business partner.

For a married couple who have children from a previous relationship and they want their share of the property to pass to those children instead of passing to the new spouse (but allow the new spouse the right to live in the property for the rest of their life, known as a life interest). 

A different perspective is towards tax planning which would allow sharing the property owned by one of the co-owners to transfer to the family or another trust instead of passing it to the surviving owner. (1) 

Affidavit of Death of Joint Tenant – Demise of one of the owners

Each county under each state may have a unique procedure. One needs to verify with the State laws and follow the procedure mentioned on their official website. However, the following generic rulesets apply in the overall scenario.

It is essential to document and verify the affidavit to be binding on others. 

A certified copy of the death certificate is one of the primary and essential documents to be presented to the recorder’s office of the registered property. The other co-owners (either one or more) need not have to go through probate court and presenting the Affidavit with the certified copy of the death certificate of the demised owner would fulfill the requirement of transferring the ownership. 

State law and/or a particular county jurisdiction requires other supplement documents. Tax-related documents could be one of them. The affidavit of death form is downloadable from the official website and these are Acrobat format pdf file extensions. 

The filled affidavit of death form could be emailed to the recording office of a particular county/state. The affidavit of death form would be made available online after the specified fee payment. (2) 

Contact us to know more

Contact eSahayak if you want to know more about the affidavit of death of Joint Tenant or affidavit of death form. 

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