To transfer real property, one needs a deed, but occasionally, the owner of the property has already been named on a recorded deed. What the owner needs is just some way of telling everyone that the other owner is dead. That is when you need an Affidavit of Death.

For example, let’s say that your Uncle filed a deed that reads: “To Irma, my loving wife, for the rest of her life, then to my brother’s child named [insert your name here].”

This deed gives Irma a “Life Estate.” The estate terminates on Irma’s death. If Irma died and you wanted to take ownership, you would have to file an Affidavit of Death. The deed tells the whole world who owns the property and what happens when one person dies. The Affidavit of Death tells the whole world that someone did die, and this impacts the ownership of the real porperty.

Who can file an Affidavit of Death?

Probate Code section 441.95 states that “any person may record” an Affidavit of Death. For the Affidavit of Death to have an effect, the person who files it must be “a person having knowledge of the facts.” (Prob. Code, § 441.95.) The Affidavit itself must contain a legal description of the realty and have the death certificate attached. (Prob. Code, § 441.95.)

What is the effect of an Affidavit of Death?

The Affidavit of Death only has effect in some circumstances. The recorded instrument that you modify by an Affidavit of Death must grant ownership in a way that changes when a person dies. The most common use is real property held in “Joint Tenancy.” It is also helpful where a person has a remainder interest or the deed includes a “right of survivorship.”

How to Draft an Affidavit of Death

You can draft an Affidavit of Death on your own. You don’t need a lawyer. However, most of the cases that I see involve tiny mistakes that the author could have avoided if the person had consulted a lawyer before recording a deed or other document evidencing or transferring ownership. Look to the website for Coleman & Horowitt, LLP, and find an office near you.

We file Affidavits of Death frequently in conjunction with Probates. Contact Coleman & Horowitt and open Probate today.