When one person on a de property is transferred depending on how the property was held. The property could be held under joint tenancy with rights of survivorship, tenancy by the entirety, tenancy in common, with a life estate, or under a trust.
If the property is held under joint tenancy with rights of survivorship or even under tenancy by the entirety, the property transfers to the surviving joint tenants when one joint tenant dies and does not transfer to the deceased joint tenant’s estate.
There is no need to go through the court probate procedure to transfer the property. The surviving joint tenant can simply go to the county recorder’s office or a similar government agency handling the recording of the deeds and present the deceased joint tenant’s death certificate and other required documents.
To determine whether the property is held under joint tenancy with rights of survivorship, the deed must explicitly say that the co-owners are holding it under joint tenancy with rights of survivorship or must contain survivorship language. Without any survivorship language, the presumption is that the co-owners hold the property under tenancy in common.
Property under tenancy by the entirety does not explicitly need to state that the property is held under this regime. It is enough that the co-owners take the property together as a married couple. The deed must transfer the property to the spouses together.
Compare the following examples, where A and B are married to each other:
In the first example, a tenancy by the entirety is created. In the second example, a tenancy in common is created between the married couple, A & B, where each spouse owns 50% each.
In tenancy in common, property transfers to the deceased co-owner’s estate. The estate then distributes the deceased co-owner’s interest, depending on whether the deceased left a will or died intestate. In this case, property can usually only be transferred through the court probate process.
Property can also be owned under a life estate. The way the property is transferred depends on whether it is the life tenant or the remainderman who dies.
In a life estate, property is usually transferred to the remainderman (who is the grantee), subject to the life estate of the life tenant. For example, A transfers to B the property, subject to the life estate of A. In this example, B is the remainderman, while A is the grantor and the life tenant.
When the life tenant dies, ownership is consolidated with the remainderman. The remainderman can simply go to the county recorder’s office with a certified copy of the death certificate of the life tenant in order to remove the annotation of a life estate in the deed.
When the remainderman dies, the remainderman’s interest goes to his estate. The remainderman’s interest is usually transferred through the court probate process. An executor or administrator’s deed is required to transfer the remainderman’s interest to his beneficiaries or heirs, depending on whether the remainderman died with or without a will.
When property is held under a trust, the property is transferred to the successor trustee when the trustee dies. To effect the transfer, the successor trustee goes to the county recorder’s office to submit a certified copy of the trustee’s death certificate, an affidavit, together with other supporting documents to reflect the change in ownership. The successor trustee will then administer the property in accordance with the terms of the trust. The terms of the trust agreement will usually dictate when this property will be distributed to the trust’s beneficiaries.
It is important to consult with a legal professional to understand the specific circumstances and any potential consequences. 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].