When a property owner dies, that deceased owner’s name stays on the title deed. This creates a problem because the chain of title—the chronological record showing every ownership transfer of the property—still shows someone who can no longer transfer property.
When the chain of title no longer matches the property’s true legal ownership, a title defect arises. Until the title defect is corrected, the heirs cannot deed, sell, or refinance the property because they do not yet have authority to convey it.
To remove the deceased owner from a title deed and clear the title defect, the heirs—or the executor or personal representative of the estate—must record new legal documents that show the property’s ownership has changed due to the owner’s death.
These legal documents must establish that either the deceased owner’s estate went through probate or that the property passed to new owners through an alternative to probate—a survivorship affidavit, an affidavit of heirship, or a small estate affidavit.
The right document depends on how the property was owned and what alternatives to probate state law provides.
This guide explains how to remove a deceased owner from title and update the chain of title to reflect current ownership. It applies to property owned by someone who has died. For strategies to help living owners prevent these issues, see our companion guide on avoiding probate of real estate with deeds.
Obtain the Vesting Deed and Any Later Deeds
The vesting deed is the title deed that originally transferred the property to the deceased owner. This document establishes where the deceased owner first appears in the chain of title.
Because the language in the vesting deed determines how the deceased owner held title (see below), locating the vesting deed is the first step to removing the deceased owner from the current title.
Also look for deeds recorded after the vesting deed. The latest valid deed in the chain of title determines ownership. For example, a later valid probate-avoidance deed—such as a transfer-on-death (TOD) deed, life estate deed, lady bird deed, or trust transfer deed—could change the ownership specified in the vesting deed.
Together, the vesting deed and any later deeds show the complete history of ownership transfers affecting the deceased owner’s interest in the property.
You can find the vesting deed—and any later deeds—in the land records of the county where the property is located. Many counties now provide online access to digitized land records. If online records are not available, you can obtain deeds in person from the county’s recording office.
If you’re comfortable searching online or visiting the local courthouse, you can often find the vesting deed yourself for free or for a small fee. If you’d rather skip the hassle, our nationwide vesting deed location service can locate it for you quickly and affordably.
Confirm How Title is Held
The next step is to review the vesting deed—and any later title deeds—to see how the deceased owner held ownership.
The language in the deed determines whether ownership passed automatically or remains subject to probate.
If title passed automatically—through a right of survivorship or life estate—the property is a non-probate asset. The only action required is to file a survivorship affidavit in the land records to prove that the owner died and the property transferred to the surviving owner (for a right of survivorship) or remainder beneficiaries (for a life estate). [should cover probate avoidance deeds]
If title did not pass automatically—if title is in the deceased owner’s name alone
Check for a Life Estate
If the deceased owner held only a life estate, there is no interest for the deceased owner’s heirs to inherit. The property passes automatically to the remainder beneficiaries named in the deed. When reviewing the vesting deed, look for language in the deed that creates a life estate. For example:
to Jane Doe for life, and upon her death to John Doe
The vesting clause in the first paragraph usually includes the life estate language. Be sure to read the entire deed and look for any language that would limit the deceased owner’s interest to a lifetime interest.
If the deceased owner held a life estate, you can use a survivorship affidavit to prove the life tenant died and establish clear title in the remainder beneficiaries.
Check for Survivorship Rights
Review the vesting deed to determine if the deceased owner and others owned the property jointly and, if so, whether the form of co-ownership includes a right of survivorship. If the deceased owner owned the property jointly with rights of survivorship, and if at least one co-owner outlived the deceased owner, the surviving co-owner takes the property.
As explained fully in our article on joint ownership of real estate, there are three ways to title property with a right of survivorship: joint tenancy with right of survivorship, tenancy by the entirety, and community property with right of survivorship.
- To determine whether the deceased owner held title as joint tenants with right of survivorship, look for language like “as joint tenants,” “as joint tenants with right of survivorship,” or “as joint tenants with right of survivorship and not as tenants in common.”
- If the property is owned by a married couple and located in a state that recognizes tenancy by the entirety, look for the phrase that indicates their marital status, such as “husband and wife.” In some states, it is necessary to include not only the marital status, but an explicit statement that the title is held “as tenants by the entirety.”
- In a community property state, the law presumes a married couple holds property as community property if they acquired it during the marriage. That is true even if only one spouse is listed on the deed. Look for language or separate survivorship agreements establishing a survivorship right (that is, creating “community property with right of survivorship”).
If survivorship rights exist and at least one co-owner outlived the deceased owner, you can usually use a survivorship affidavit to remove the deceased owner and establish ownership in the surviving owner.
Evaluate Alternatives to Probate
If the deceased owner did not hold title jointly with a surviving owner, check whether probate alternatives—such as survivorship affidavits, affidavits of heirship, or small estate affidavits—are available under state law, particularly the probate code provisions that govern real estate transfers after death. These probate alternatives may let you transfer the deceased owner’s interest and update the title without a full probate proceeding.
Most states provide streamlined alternatives to probate. These alternatives vary based on state law and usually apply only in limited circumstances. The following list includes common alternatives to probate, but whether some or all of them is available depends on state law.
Survivorship Affidavit
A survivorship affidavit is a legal document used to show that a joint owner listed on the title deed has died. Recording it in the county land records removes the deceased owner’s name and confirms ownership in the surviving co-owner. The survivorship affidavit usually includes a copy of the deceased owner’s death certificate to put evidence of death in the land records.
A survivorship affidavit works with either a life estate or a right of survivorship. Its purpose is to prove that the owner is deceased and that the property passed to the remainder beneficiaries (in the case of a life estate) or surviving co-owners (through a right of survivorship).
A survivorship affidavit does not create a transfer of property. The life estate deed or right of survivorship creates the transfer. The survivorship affidavit simply shows that the deceased owner’s death triggered the automatic transfer.
Affidavit of Heirship
An affidavit of heirship is a legal document that identifies the heirs entitled to inherit a deceased owner’s real estate when no will or probate transfer exists. Recording it updates the title deed to reflect the heirs’ ownership. Consider an affidavit of heirship if it is allowed by state law and if the deceased owner died intestate (without a will).
An affidavit of heirship usually comes with a waiting period. State law may set how long third parties must wait before relying on the heirship affidavit to clear title. Even if state law does not set a time period, title insurance companies usually accept an heirship affidavit only after several years.
Small Estate Affidavit (Intestate or Testate)
A small estate affidavit is a legal document that allows heirs to transfer a deceased owner’s real estate when the estate’s total value is below the state’s small-estate threshold. Once recorded with the county recorder, it corrects the title deed without full probate.
Consider a small estate affidavit if the value of the total probate estate is below the statutory limit. Some states limit small estate affidavits to personal property (not real estate). Others allow it for all types of property, including real estate. Be sure to check state law.
Summary, Simplified, or Muniment Probate Proceedings
Some state laws provide streamlined probate processes for small or straightforward estates. These processes require court involvement, but with less hassle and expense than a full probate proceeding. In many cases, in-person hearings are not required. Examples include:
- Summary administration
- Muniment of title proceedings
- Small estate proceeding
- Informal probates
These proceedings confirm ownership without full estate administration. They often apply only to property in the deceased owner’s name with no creditor complications. Some apply only after a waiting period has passed.
Complete Probate if Necessary
If no probate alternative applies, the heirs must complete a full probate proceeding to establish legal ownership and clear the chain of title. Through probate, the court conclusively establishes clear title in the deceased owner’s beneficiaries or heirs at law. Most probate proceedings also resolve potential creditor claims so the heirs or beneficiaries receive clear title without risk of future disputes.
Record the Correct Documents in the Land Records
Regardless of the legal procedure used—affidavit or probate proceeding—you must record the resulting documents in the county recorder’s land records—the official public record of property ownership. Recording the updated documents removes the deceased owner’s name and shows who now has legal authority to convey the property, allowing buyers, lenders, and title insurers to verify ownership by examining the chain of title.
Each county has its own recording requirements—rules about document formatting, signatures, and fees—that deed preparers must meet before the recorder will accept the updated deed.
Verify the Updated Title
Although not strictly necessary, you should often follow up with the county recorder and property tax assessor. After recording, confirm that the county recorder and property tax assessor now show the correct owner on the title deed. This final check ensures all public entities recognize the transfer from the deceased owner to the heirs or beneficiaries.