A deed contains the names of the old and new owners and the legal description of the property. Some states, such as Nevada, Indiana and Ohio, allow residents to use a deed known as a "beneficiary" or "transfer on death" deed. The deed passes to a beneficiary when the owner dies. If both names of a married couple appear on the deed, the property automatically transfers to the surviving spouse. It can be through joint tenancy with right of survivorship, tenancy by entireties or community property with right of survivorship. These methods bypass probate court. The deed must be altered for future sale or heirs.
Review the deed. Determine if it is necessary to file in probate court. The spouse must still be alive and be the beneficiary to bypass probate court. Otherwise, the entire estate must be worth less than $100,000, including cash, stocks, bonds, vehicles, homes, land and so forth.
Obtain a certified copy of the spouse's death certificate. This document should be available from the health department, Department of Human Resources, department of public health or the department of vital records. Each state has different regulations regarding the filing of death certificates. Some funeral homes have certified copies on hand for the convenience of the survivors. You will need a certified copy of the death certificate for each agency with which you must deal regarding the deceased.
Contact your county recorder’s office or registrar of deeds office. This is the office where all deeds and their accompanying encumbrances, such as mortgages, are recorded. Ask the clerk for a list of documents you must provide to have a name removed from the deed. Some states, such as Oklahoma, require a notarized affidavit of surviving joint tenant. Others require an affidavit or declaration of survivorship. An affidavit must be notarized while a declaration may be signed, subject to penalties for perjury.
Ask the clerk about filing deadlines. Find out is there are time limits associated with the transfer and ask about current filing fees.
Complete the affidavit of surviving joint tenant, affidavit of survivorship or declaration of survivorship. You must provide a legal description of the property. Precisely copy the description from the deed including the punctuation. If it’s an affidavit, you’ll need to sign it in front of a notary public.
Type a revised deed removing the name of the deceased spouse. You may wish to hire an attorney to do this. Have the revised deed notarized. Make a copy for your records.
Complete your country recorder’s or registrar of deed’s in-office request form, if applicable.
File the documents. File the affidavit or declaration of survivorship, revised deed, certified death certificate in the office of the county recorder or registrar of deeds. Make sure you have photo identification in case the clerk requests it.
Shari Caudill began writing professionally in 1985 with the "Portsmouth Daily Times." Her work has also been published in the "Community Common" and "Cleveland Plain Dealer." Caudill has a writing certificate from the Institute of Children's Literature and a photography certificate from the New York Institute of Photography.