How Do You Remove a Deceased Person From A Deed in New York City

When a loved one dies, the most important asset they usually leave behind is the house. The surviving heirs or beneficiaries then have to figure out, “how do you remove a deceased person from a deed?”

Removing the deceased person from a deed can be done by the recording clerk if they owned the property with a surviving co-owner, otherwise through probate.

Removing the deceased person from a deed involves a two-step legal analysis:

• Determine how the deceased person owns the property by examining the deed; and
• The type of ownership will determine the kind of transfer required to remove the deceased person from the deed.

Step 1: Determine how the deceased person owned the property

There are generally four ways to own property: sole ownership, tenancy in common, joint ownership with rights of survivorship, and tenancy by the entirety. In real estate, however, ownership can also vary when other interests are designated in the deed. Examples of these deeds are life estate deeds, transfer on death deeds, and ladybird deeds (or enhanced life estate deeds). The different types of ownership and additional interests would dictate how a deceased person would be removed from the deed.

Tenancy in common

Check the language of deed to see if it states that the property is co-owned as tenants-in-common with their corresponding percentages of ownership. If the property is co-owned but the deed is silent, the default ownership is tenancy in common. When real property is owned as tenants in common, the interest of the deceased person transfers to his estate upon his death and not to the other co-owners.

Who receives the property: deceased person’s estate

Joint ownership with rights of survivorship and tenancy by the entirety

When the property is co-owned and the deed includes rights of survivorship language, the property is owned as joint owners with rights of survivorship.

If the property is purchased by spouses, the property is owned as tenancy by the entirety, even if survivorship language is absent in the deed. Check to see if the deed includes the words “husband and wife,” “spouses” or “tenancy by the entirety.”

In both cases, when the deceased co-owner dies, the property does not go to the deceased person’s estate but the surviving co-owner or spouse.

Who receives the property: surviving co-owner or spouse

Ownership as trustee

When property is owned by the deceased person as a trustee of the trust, the deceased person only holds legal title to the property but beneficial ownership rests upon the beneficiaries of the trust. In this case, property is transferred to the successor trustee.

Who receives the property: successor trustee

Sole ownership

When the property is solely owned by the deceased person without any designated beneficiaries in a life estate or transfer on death deed, this property passes to the estate of the deceased person. Who receives the property would depend on whether the deceased person left a will, devised it to a specific beneficiary, or died intestate.

Who receives the property: estate of the deceased person

Life estate deed

In a life estate deed, the grantor already transfers the property to the grantee, but reserves upon himself a life estate. The new owner becomes the grantee, but the grantor, as life tenant, retains the right to live in the property until he or she dies. A life estate deed cannot be revoked without the grantee’s consent, since the grantee is already registered as the new owner of the property.

Who receives the property: the grantee who is already registered as the new owner upon recording of the life estate deed

Transfer on death deed

In a transfer on death deed, the grantor transfers to the grantee the real property, effective only upon death of the grantor. Unlike in a life estate deed where the transfer of ownership is effective immediately, the transfer in a transfer on death deed is delayed and effective only upon death of the grantor. Unlike in a life estate deed where the transfer of ownership is irrevocable, a transfer on death deed is revocable anytime before the grantor dies.

Who receives the property: the grantee in a transfer on death deed

Ladybird deed

A ladybird deed is similar to the transfer on death deed because it is revocable and transferred only to the grantee’s name upon death of grantor. It is different because a transfer on death deed does not offer warranties while a ladybird deed does, and the transfer on death deed can only be signed by the owner while a ladybird deed can be signed by a person with a power of attorney. In New York, however, ladybird deeds are not recognized.

Who receives the property: the grantee in a ladybird deed

Step 2: Determine type of transfer based on ownership

Once you have determined the type of ownership, you can figure out how to remove the deceased person’s name from the deed.

When the person who receives the property is not the estate

To remove the deceased person’s name from the deed in cases of joint tenancy with rights of survivorship, tenancy by the entirety, ownership as trustee, life estate deed, transfer on death deed, and ladybird deed, the person who receives the estate upon death of the deceased person (the surviving co-owner, spouse, the successor trustee, the grantee in a life estate or transfer on death deed) submits to the county recorder the following documents:

1. certified copy of the death of the deceased person issued by the New York State Department of Health;
2. sworn statement;
3. other additional documents that may be required.

The sworn statement is in the form of an affidavit that is notarized and sworn under oath with penalty of perjury. The contents of this affidavit will depend on how the deceased person owned the property.

For example, if the property was owned under tenancy by the entirety, the affidavit to submitted is an affidavit of continuous marriage, alleging the legal description of the property, a reference to the deed transferring the property to the spouses, that the property was purchased and held by the spouses under tenancy by the entirety, the date of marriage of the spouses, that the marriage had been continuous and was not dissolved by divorce or legal separation at the time of the deceased spouse’s death, and the name and signature of the surviving spouse.

For property owned under joint tenancy with rights of survivorship, the affidavit to be submitted is an affidavit of survivorship, alleging the same references to the legal description of the property and the deed, that the property was owned under joint tenancy with rights of survivorship, the date the deceased joint owner died, and the name and signature of the surviving co-owners.

For property owned as trustee, the affidavit to be submitted by the successor trustee is an affidavit of death of trustee, alleging the same references to the legal description of the property and deed, that the property was owned as trustee, and that the person submitting the affidavit is the surviving successor trustee pursuant to the terms of the trust.

For transfer on death and life estate deeds, an affidavit of death is submitted.

These sworn statements/affidavits have to be written by a lawyer to ensure that all information required are included. Should you need assistance in preparing this affidavit, you can call us at 212-233-1233 or send us an email at [email protected].

When the person who receives the property is the estate

In cases of tenancy in common and sole ownership, the person who receives the property is the estate.

Usually, to remove the deceased person’s name from the deed, probate proceedings are instituted where an executor or administrator is appointed by the Surrogate’s Court. Once debts are paid, the executor or administrator issues an administrator or executor’s deed, transferring property to the distributees, the devisee, or the residuary beneficiary, as the case may be. This is the best way to transfer title to the heirs or beneficiaries.

Sometimes, when the sole property of the deceased person is the real estate, an affidavit of heirship, stating the family tree and who the heirs of the deceased are, may be accepted by the title insurance company for purposes of transferring title.

Removing a deceased person’s name from the deed requires a legal analysis on how the deceased person owned the property. Although the heirs can DIY, an attorney can guide you through the process and prepare the corresponding sworn statements required to transfer title in your name. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].