Real property owners sometimes include a descendant, usually one of their children, on their property deed so that when they die the property passes to that individual without requiring probate. A descendant is any direct issue of an individual, such as child or grandchild. Including a descendent on a property deed ensures the property stays in the family. But there are certain circumstances where the descendant must be removed from the deed. Two of the most common reasons are when the descendant does not want the property for financial reasons or when the descendant dies before the property owner.
Draft a new deed wherein the descendant to be removed from the original deed grants, or transfers, his interest in the property to you as the other owner named on the original deed. Some states, such as South Carolina, require that deeds be prepared by attorneys. Otherwise, deed forms are often available from court clerk offices, or you can download from online legal document providers. Include the full legal property description from of the original deed and any other clauses required by your state, such as a probate clause. Talk to a real estate attorney licensed to practice in your state or a local real estate agent for guidance.
Research your state's signing requirements and make sure they are met so that the deed transfer is legal. The descendant should sign the deed according to your state's requirements. Most states require that a notary witness the signing; others require a notary and another witness.
Contact your county clerk's office and ask if you need to file multiple copies of the deed, or if one is sufficient, and ask the amount of the required filing fee. File the new deed with the court clerk in charge of property deeds in the county where the property is located and pay the required fee.
Examine the original deed and identify whether the descendant owned the property with you as joint tenants, or as tenants in common. In a joint tenancy, the deceased's interest in the property passes immediately to the surviving owner. In the case of a joint tenancy, it is not necessary to wait for the close of probate to create a new deed vesting sole ownership to you. If, however, the property was owned as tenants in common, the deceased descendant's ownership interest passes to his heirs rather than back to you.
Draft a new deed using a form deed acquired from a local real estate attorney, real estate agency or from an online legal document provider. If you reside in a state that requires attorneys to draft deeds, retain a real estate attorney licensed to practice in your state. List the deceased descendant as the grantor. If the property was originally owned in a joint tenancy, list yourself as the sole owner on the new deed. If the property was originally owned as tenants in common, list the heir inheriting the deceased descendant's interest as the new joint owner with your. Include any other information required by your state, including the legal property description from the original deed.
Sign the new deed before a notary public. The personal representative for the deceased descendant's estate signs on behalf as the grantor. Research your state's requirements for property transfers to see whether you sign, too, and whether the deceased descendant's heir, if any, must also sign. Have the new deed notarized.
File the new deed with the court clerk in charge of property deeds in the county where the property is located, and pay the required filing fee.
When drafting the new deed, do not simply copy the original deed as the legal requirements may have changed since it was created. Contact a real estate attorney for help, if you are unsure.
An attorney for more than 18 years, Jennifer Williams has served the Florida Judiciary as supervising attorney for research and drafting, and as appointed special master. Williams has a Bachelor of Arts in communications from Jacksonville University, law degree from NSU's Shepard-Broad Law Center and certificates in environmental law and Native American rights from Tulsa University Law.