The inclusion of 14 words in a deed for real estate acts like magic in allowing that real estate to avoid probate when fewer than all joint owners die.
When two or more people own real estate together, each co-owner usually owns an equal, undivided part of that real estate. For instance, if a married couple jointly owns a home, each spouse owns an undivided one-half of the home. This default joint ownership arrangement is called “tenancy in common” with the owners called “tenants in common.”
Homes are often jointly owned by married couples. As tenants in common, when one spouse dies, the other spouse may receive the deceased spouse’s one-half interest in the house through probate (if the deceased spouse had a will) or through Ohio laws of distribution (if there is no will).
Of course, for real estate to go through probate, the real estate must be identified, have its ownership of record at the local courthouse confirmed and be appraised. For married couples who own a home as tenants in common, undertaking the whole probate process for the home is necessary, even though only half of the home was owned by the first spouse to die.
For efficiency, the law has created a type of joint ownership called “joint with survivorship.” Under joint with survivorship ownership, the portion of ownership owned by a deceased person automatically, as a matter of law is transferred to the surviving joint owner or owners when that one joint owner dies.
For example, for a married couple who owns a house jointly with survivorship, when the first spouse dies, the surviving spouse automatically owns the deceased spouse’s one-half interest in the house. Instead of going through probate, the surviving spouse only needs to file the deceased spouse’s original death certificate at the local county recorder’s office along with an affidavit confirming that the person named in the death certificate is, in fact, the deceased spouse. No probate of the deceased spouse’s one-half interest is required. Notably, mortgaged property can be owned jointly with survivorship, but the mortgage remains binding on the whole property.
Whether jointly owned real estate is owned as tenants in common or joint with survivorship is determined by the words in the deed to the property. Without any specific language in the property’s deed, jointly owned real estate is owned by tenants in common.
If a deed to certain real estate provides the following 14 words (or something close to the following 14 words), the owners named in the deed will own that real estate jointly with survivorship: “for their joint lives, remainder over in fee simple to the survivor of them.”
To get the 14 “magic” words into the deed for property that is already owned by tenants in common, the owners transfer the property from themselves to themselves in a new deed that includes the magic words. Adding the 14 words into a deed to property is a very common reason that many people transfer real estate from themselves to themselves.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.