Affidavit of Survivorship

An Affidavit of Survivorship is a sworn statement used to remove a deceased co-owner from the title of property held with right of survivorship, transferring full ownership to the surviving owner without probate. When real estate is held in joint tenancy with right of survivorship, or as community property with right of survivorship, the deceased owner's interest passes automatically to the survivor by operation of law, and the affidavit simply documents that change in the public record. The surviving owner records the affidavit with the county recorder, attaches a certified death certificate, and provides the legal description of the property exactly as it appears on the deed. The affiant swears under penalty of perjury before a notary public that the co-owner died and the survivorship applies. Once recorded, the affidavit clears the title so the survivor can sell, refinance, or mortgage the property as sole owner.

Joint tenancy with right of survivorship and tenancy in common differ fundamentally in what happens when an owner dies, which determines whether an Affidavit of Survivorship can be used. In joint tenancy with right of survivorship, a deceased owner's share passes automatically to the surviving co-owners, so the survivor can use the affidavit to clear title without probate. In tenancy in common, each owner holds a separate, transferable share that passes through the deceased owner's estate by will or intestate succession, not to the co-owners, so the affidavit does not apply and probate is usually required. The form of ownership is set by the wording on the deed, which must expressly create survivorship rights. Because an affidavit cannot create survivorship that the deed never established, the surviving owner should confirm the deed language before recording, and consult an attorney if the ownership type is unclear.

An Affidavit of Survivorship requires a certified copy of the deceased co-owner's death certificate, the legal description of the property taken directly from the original deed, and the recording information of that deed, all submitted with the notarized affidavit to the county recorder. The affidavit identifies the surviving owner, the deceased owner, the date of death, and the survivorship form of ownership. The death certificate must be a certified original from the state vital records office, not a photocopy, because the recorder relies on it as primary proof of death. The legal description must match the deed exactly, since any discrepancy can create a title defect that surfaces during a later sale or refinance. Ordering several certified death certificates is practical, as the survivor may need copies for banks and other institutions. Some counties provide their own affidavit form, so the survivor should confirm local recording requirements.

An Affidavit of Survivorship avoids probate for the specific property held with right of survivorship, because that property passes automatically to the surviving owner outside the deceased owner's estate. Recording the affidavit with a certified death certificate updates the public record to reflect the survivor as sole owner, allowing a sale or refinance without court involvement. The affidavit only affects property titled with survivorship rights, however; assets held in the deceased owner's name alone, or as tenants in common, still pass through their estate and may require probate. The affidavit also does not address the deceased owner's debts or other estate matters. For families relying on survivorship to keep a home out of probate, the deed must already establish those rights, since the affidavit documents an existing transfer rather than creating one. Confirming the deed language and recording the affidavit promptly keeps the chain of title clean.

You do not always need a lawyer to file an Affidavit of Survivorship, because for a clearly worded survivorship deed the surviving owner can complete the form, attach a certified death certificate, and record it with the county recorder. Many recorders publish format requirements, and a properly notarized affidavit with the matching legal description is widely accepted. Legal help becomes worthwhile when the deed language is ambiguous about whether survivorship rights exist, when the property may actually be held as tenants in common, or when multiple owners or competing claims complicate the title. An attorney or title company can confirm that the affidavit is the correct tool and that recording it will produce marketable title. Because a title defect can surface years later during a sale or refinance, accuracy in the legal description and ownership type matters, so reviewing the original deed before recording is a sensible precaution.