Full question:
My client's wife died. There exists a Warranty Deed, Corporate Grantor for a condo they purchased. The conveyance was to my client and his wife (now deceased) as Joint Tenants in Common with Full Rights of Survivorship. What, if anything, needs to be done to convey this to my client? Will a new Warranty Deed with the Corporate Grantors signature and then recorded in the proper county be sufficient to convey the real estate to my client?
- Category: Real Property
- Subcategory: Deeds
- Date:
- State: Iowa
Answer:
The language you quoted is somewhat contradictory, as tenants in common usually don't have the right of survivorship, as joint tenants do. I suggest having a local attorney review the documents involved.
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
When property passes through a right of survivorship, the deceased owner's interest passes directly to the surviving owners, outside the probate process. The procedures for amendment of the deed to remove the deceased varies by local area. Typically, a copy of the death certificate is required, along with applicable fees. I suggest calling the recorder's office in the county where the property is located to inquire about applicable requirements.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
