Q: When a joint owner on real estate dies, what does the survivor have to do to transfer title if they decide to sell it. Does the home have to go through probate? Can the survivor sign the decedent's name on the deed?

A: When more than one person owns real estate together, there are two basic types of ownership interests that can exist: tenants in common and joint tenants with rights of survivorship. There is a third type reserved for married couples known as tenants by entireties but that is essentially a joint tenants with rights of survivorship interest that offers additional protections because of the marital bond.

When two or more people own property as tenants in common, they each own a specific percentage of the land. That doesn't mean one of them can point to a corner of the property and says that's mine. Rather, it means that they own a percentage in the whole. When a tenant in common passes away, his or her interest transfers according to his estate plan or the intestate laws should they fail to leave one. The surviving tenants in common do not necessarily receive the decedent's interest. They might, but it definitely isn't certain.

When two or more people own property as joint tenants with rights of survivorship, they own an undivided interest in the whole. When a joint tenant passes away, the surviving joint tenant(s) owns the whole. The deceased joint tenant's estate plan does not control the interest. The surviving joint tenants own the interest as a matter of law.

Because the interest transfers as a matter of law, a deceased joint tenant's interest does not need to go through probate. Also, you don't need to sign the deceased joint tenant's name, which is good, because you obviously shouldn't do it.  

What a surviving joint tenant needs to do is record a surviving joint tenant affidavit. The affidavit will include all of the information needed to remove the deceased joint tenants name from the property. Once the deceased joint tenants name is removed, the surviving joint tenants(s) can do as they please with the property including selling it.

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Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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