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Owning Real Estate As Tenants in Common Or Joint Tenants with Right of Survivorship

01.06.17 written by

After the death of an individual, one of the documents that need to be reviewed is the individual’s deed to real estate he or she owned.  Ohio law and the language in the deed determine what happens with the decedent’s ownership in the real estate.  In Ohio, if real estate is owned by Jim Smith with no transfer on death affidavit of record, then Mr. Smith’s real estate will pass through probate, and his will determines who owns the real estate.

If the language of the deed lists the owners as “Jim Smith and Mary Smith”, then this real estate is owned by both parties as tenants in common during their joint lives.  This is a common form of real estate ownership in Ohio and both Jim and Mary each own an undivided interest in the entire real estate.  Upon the death of either owner, the deceased owner’s ½ interest in the real estate passes to his or her heirs at law or beneficiaries in his or her will.  If the decedent has a will, the will determines who becomes the owner of the decedent’s undivided ½ interest in the real estate.

This transfer of real estate does not automatically happen.  First, the decedent’s executor named in the will is appointed as executor in the probate court in the county where the decedent was residing. Then after filing an inventory of all of the probate assets, the fiduciary files a document called a Certificate of Transfer which is filed at the probate court and then recorded in the county recorder’s office where the real estate is located.  This Certificate of Transfer acts as a deed and names the new owner of the deceased individual’s undivided ½ interest in the real estate.

If the deed lists the owners as “Jim Smith and Mary Smith for their joint lives remainder to the survivor of them”, this is considered a survivorship deed.  This is also a common way to own real estate for spouses and sometimes other individuals.
If the real estate is held in survivorship form, upon the death of an owner of the real estate, the decedent’s ownership interest in the real estate passes by law to the surviving co-owner.  In order to show the survivor as the owner, an interested party, most presumably the surviving co-owner, signs an affidavit that states the following:

  1. The affidavit describes who the joint owners were and the specific county recorder reference to the deed where the survivorship deed was initially recorded;
  2. The affidavit lists the specific real estate description and parcel number;
  3. The affidavit lists the specific address of the real estate;
  4. The affidavit states that one of the co-owners passed away and specifically lists the date of death and states that a certified death certificate is attached to the affidavit; and
  5. The affidavit states that as a result of the death of the party listed in the previous paragraph that the surviving co-owner is the fee simple owner of the above-described premises.

The surviving owner then signs the Affidavit in the presence of a notary public, a certified death certificate is attached, and then the Affidavit and certified death certificate are recorded in the county where the real estate is located.  As a result of this, the real estate is now technically owned by the surviving co-owner.

Therefore, when an individual passes away with real estate, it is important for the surviving owner and/or family members to determine whether or not the deed is a tenancy in common deed or whether it is a survivorship deed to determine exactly what needs to be done in order to have the real estate transfer after the decedent’s death.

Please contact your local estate planning attorney to assist you with these matters.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663
Phone:   330-364-3472
Fax:   330-602-3187