When a property owner dies, the property may change hands in one of several ways. The estate plan of the deceased, if there is one, will determine how real estate transfers to heirs or survivors. A deed may not always be required to effectuate the property transfer to heirs or other designated parties, but an attorney can prepare one to be signed and filed to clarify the property title. It may only be necessary to prepare an affidavit for title purposes. If property is being sold to an unrelated third party, the legally authorised person must convey the deceased's interest.
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Sign a personal representative's, or executor's, deed if you are the court-authorised person designated in the will to convey the property under its terms. Although the will conveys the property to the heirs or other designee without a deed, a personal representative's deed will clarify the real property records regarding the transfer. If the property is being sold to divide the proceeds among the designees, and you are given power to sell, execute a personal representative's deed to the third-party purchaser to transfer title out of the estate.
All heirs of the deceased sign a deed if the deceased died intestate, or without a will, and state law permits this form of conveyance. State laws on intestate succession determine who inherits the property. All heirs must sign any deed conveying property owned by the deceased. If one or more of the heirs refuses to sign the deed, then court action may be required to divide the property, and the judge may order the clerk of the court to convey the interest of the refusing party.
Sign an administrator's deed if you have been appointed as administrator of an intestate estate. Generally, an administrator may not deed property without a court order. The court may order a sale of the property to a third party to pay debts of the estate or to divide the property equitably among the heirs.
Execute an affidavit of survivor's death. If the decedent owned property with a spouse or other party with survivorship provisions, then the property automatically transfers to the surviving co-owner upon the death. A deed is not necessary. If you are the surviving co-owner, however, you may desire to record an affidavit verifying the death to clarify the property transfer in the real property records.
Tips and warnings
- Contact an attorney to assist in preparing legal documents.
- A title company may require that sufficient time pass after death before insuring clear title from heirs of an estate that has not been probated.
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- The Forum for Massachusetts Law: Executor Deeds and Tax
- RealEstateLawyers: Understanding the Executor's Deed
- Vermont Attorneys Title Corporation: Conveyance By Heirs' Deed
- LoneStarLandLaw: Affidavit of Heirship in Texas
- Onecle: Code of Alabama - Title 35: Property - Section 35-6-20
- CentralDBA: Affidavit of Death of Joint Tenant, Trustee, or Spouse