What happens to a jointly owned house when someone dies? It depends on whether the house was owned as tenancy in common, tenancy by the entirety or joint tenants. You will need to look at the deed to determine what kind of deed it is.
Tenancy by the Entirety. If the two co-owners were married at the time they’ve acquired the house and have not subsequently divorced, then they own the house as tenants by the entirety, meaning that there is a survivorship right to the surviving spouse. If you and your spouse owned New York property together jointly, and your spouse passes away, ownership automatically transfers to you. Property held jointly is exempt from New York probate because ownership/title passes outside the estate. However, as the surviving spouse, you will still need to have your deceased spouse’s name removed from the title and a new certificate of title issued to you in your name. If you are planning on selling the property, you can theoretically just transfer the property to a buyer, but many buyers and their banks like to see an estate executor or administrator or the sole property owner on the deed before approving the sale. In which case, you would need to either file a probate proceeding or re-register the deed.
Tenancy in Common. If co-owners own the house together and they are not married and the deed does not specify that there is a survivorship right or a joint tenancy, then there is no survivorship right and the remaining co-owners do not take over the share of the co-owner who died. The deceased co-owner’s share would go to that deceased co-owner’s estate. So for example, if the deceased co-owner had a spouse or children, half of their share would go to their spouse and half would go to their children. If the deceased co-owner left a will, their share of the house would be distributed in accordance with the will.
Joint Tenancy. If you co-own the house and the deed specifies a joint tenancy or a survivorship right, then the share of the person who died gets canceled out upon their death in favor of the remaining co-owner or co-owners. If you co-own a property jointly with someone and they die, and you have a right of survivorship, ownership automatically transfers to you and to the remaining co-owners, if any. Property held jointly is exempt from New York probate because ownership/title passes outside the estate. However, as the surviving co-owner, you will still need to have the name of the person who died removed from the title and a new certificate of title issued in the name of the remaining co-owner(s). If you are planning on selling the property, you can theoretically just transfer the property to a buyer, but many buyers and their banks like to see an estate executor or administrator or the actual owners of the property on the deed before approving the sale. In which case, you would need to either file a probate proceeding or re-register the deed.
Procedure to get Deceased Joint Owner’s Name Removed from the Deed
Matters pertaining to transfer of title to real estate owned jointly by a married couple after one spouse passes away should be handled by an experienced New York estate attorney. The attorney can prepare and file a Petition for Reissuance of Certificate of Title for Surviving Spouse or Joint Tenant with Right of Survivorship with the Office of the New York City Register of the County where the property is located requesting that a new Certificate of Title be issued to the surviving owner/spouse. It will also be necessary to provide a certified copy of your deceased spouse’s death certificate for filing with the Petition, together with the duplicate certificate of title or a statement that the certificate of title has been lost or stolen. There is also a nominal recording fee that must be paid.
The Petition must be signed by the surviving spouse before a notary public. The Petition generally includes the deceased spouse’s name, the date of death, the fact that the couple were married and owned the property together either as joint tenants with right of survivorship or as tenants in the entirety, depending on how the title was originally taken, and a description of the property. There should also be a statement as to whether the property is subject to any estate taxes.
A Possible Estate Tax Filing
Some property ownership transfers need to file a tax return. You should consult your accountant about the details. A few New York estates are required to file a New York estate Tax return form ET-706 and a federal estate tax form 706 with the IRS within 9 months after the decedent’s death and pay the taxes that may be owed. An extension to file may be requested by filing form ET-133 so long as the extension does not exceed six months. The New York estate attorney can prepare the return.
If you need any assistance with transferring an interest in a jointly owned house when someone dies, a New York estate attorney can help you with the matter, as well as with other estate administration and probate, estate litigation or tax matters. You can call the Law Offices of Albert Goodwin at (212) 233-1233.