When a person dies, her assets will be distributed to her heirs through the probate process. The transfer of any real estate must be recorded by a written document, most commonly a deed. Heirs do not need to sign a deed if the deceased's will states they will take over the property; however, they will still need for the probate process to finish before they can use the property. An heir can avoid any delay of property use if the deceased had set up an immediate transfer of property rights, such as joint ownership, before she died.
A deed is used to transfer the ownership of real estate property. When a person wants to transfer real estate to someone else, he signs a property deed that lists a description of the property and the names of the old and new owners. When a person dies, his estate plan determines how is property will be transferred to heirs. Whether a deed is needed for the heirs to use the real estate depends on how the deceased had titled his assets and prepared his will.
Transfers Requiring a Deed
For a person to transfer property either alive or at death, she must record the transfer in writing. A deed is the most commonly used document, but a will can also serve this purpose. If a person dies intestate, without a will, the heirs of real estate must sign a deed to complete the transfer of property, allowing them to use the property. Even if there is a will and no deed is required, the executor of the deceased's estate should still sign an executor's deed for property transfer in order to clarify property records regarding the transfer.
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Transfer without Deeds
A deed is not necessary for an heir to use real estate if he had a form of joint ownership in the property with the deceased. When an owner dies in jointly owned property, the surviving co-owner automatically takes over ownership because of survivorship provisions. This automatic transfer also occurs if the deceased had set up a transfer-on-death deed for the property. The real estate immediately goes to the heir and avoids probate. While a deed is not necessary in these transfers, the heir should file an affidavit recording the past owner's death in the real estate records to clarify the property transfer.
While managing and distributing an estate, an executor may need to sell some of the deceased's real estate. This step may be necessary to pay off the deceased's expenses or to divide the estate proceeds better among the heirs. A deed will be needed to transfer the ownership title of property to a third party not mentioned in the will. The heirs will not be allowed to use property that is sold out of the deceased's estate.
- “Fundamentals of Estate Planning”; Constance Fontaine; 2010
- NOLO: Deeds FAQ
- RealEstateLawyers.com: Understanding the Executor's Deed
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