An Affidavit of Survivorship is a short sworn statement that transfers real property from a deceased co-owner into the surviving co-owner’s name alone, without probate, when the deed created a right of survivorship. You sign it in front of a notary, attach a certified death certificate, and record both with the county where the property sits. The document is simple. What decides whether it actually works is the language printed on your existing deed, and a few tax and lien issues worth handling before you file.
Check the Deed Before You File
Pull the recorded deed and read how the co-ownership is described. That wording controls whether an affidavit will clear title at all. Three forms of ownership support it:
- Joint tenancy with right of survivorship. When one joint tenant dies, the share passes automatically to the surviving tenant or tenants. The deed has to use language that specifically creates a joint tenancy; without it, the law generally presumes a tenancy in common.1Legal Information Institute. Joint Tenancy
- Tenancy by the entirety. Available only to married couples and recognized in roughly half of all states. It works like joint tenancy with added protections against one spouse’s individual creditors.
- Community property with right of survivorship. An option in the nine community property states, available only to married couples, and only when the deed expressly includes survivorship language.
If the deed says “tenants in common,” an Affidavit of Survivorship will not transfer the share. A deceased tenant in common’s interest passes under their will or through intestacy, and probate is usually required.1Legal Information Institute. Joint Tenancy
If the wording is unclear, have a real estate attorney read it before you record anything. An affidavit filed against a deed that lacks proper survivorship language does not transfer title, and you can still end up in probate after spending the filing fee.
What You Need to Prepare
Gather everything before you sit down with the form:
- A certified copy of the death certificate from the vital records office in the state where the death occurred. Photocopies are not accepted. Expect roughly $15 to $25 per certified copy.
- The current recorded deed, to confirm the ownership type and copy the legal description. Your county recorder can provide a copy for a small fee if you don’t have one.
- The legal description of the property, copied exactly from the deed. That’s the lot, block, survey reference, or metes and bounds description, not the street address.
- Personal details: the deceased owner’s full legal name, date of death, and place of death, plus the surviving owner’s full legal name and current address.
Blank forms are often available from the county recorder, local title companies, or a real estate attorney. Some counties post them online. If you use a generic template, check your county’s formatting rules for recorded documents. Margins, font size, and page dimensions all matter, and offices will reject a document that misses them.
Filling Out and Notarizing the Affidavit
The affidavit identifies the property, states that it was held with a right of survivorship, confirms the co-owner has died, and declares that you are the surviving owner entitled to full ownership. It references the recording information from the original deed (book and page, or instrument number) and attaches the legal description.
Do not sign until you are in front of a notary public. The notary verifies your identity with a government-issued photo ID, watches you sign, and applies the seal. Without proper notarization the recorder will reject it. Notary fees for acknowledgments are set by state law and are typically under $10.
Filing With the County Recorder
Take the notarized affidavit and the certified death certificate to the county recorder’s office (sometimes called the Register of Deeds or Land Records Office) in the county where the property is located. If the property crosses county lines, file in each county. Most offices accept walk-ins, and many also accept mailed submissions.
Recording fees generally run between $25 and $50 for a standard document, and some offices charge per page. Once recorded, the affidavit is indexed in the public land records and the deceased owner’s name is effectively removed from the chain of title. You’ll get a stamped copy back showing the recording information. Keep it with your permanent records.
After recording, update the property tax account, the homeowner’s insurance policy, and any homeowners association records to reflect sole ownership.
The Mortgage After a Co-Owner’s Death
An outstanding mortgage does not disappear when a co-owner dies, and a common worry is that the lender will call the loan due once ownership changes. Federal law blocks that. Under the Garn-St. Germain Act, a lender cannot enforce a due-on-sale clause when property transfers on the death of a joint tenant or tenant by the entirety, or when property passes to a relative because of the borrower’s death.2Office of the Law Revision Counsel. 12 US Code 1701j-3 – Preemption of Due-on-Sale Prohibitions
If you were a co-borrower, you’re already on the note and can simply keep making payments. If you were not on the loan, the Consumer Financial Protection Bureau allows lenders to add an heir as the borrower without running the new owner through full mortgage underwriting. You are not required to refinance. You can continue the existing loan, pay it off, refinance for better terms, or sell.
Notify the mortgage servicer of the death promptly and send a copy of the death certificate. Lenders need to update their records, and staying in touch prevents confusion over payments made in the deceased borrower’s name. Do not stop paying while paperwork is being sorted; the loan can still default.
Taxes: Basis Step-Up and Estate Thresholds
Most surviving co-owners will not owe federal estate tax. For deaths in 2026, no estate tax return is required unless the deceased person’s total gross estate exceeds $15,000,000.3Internal Revenue Service. Whats New Estate and Gift Tax Jointly held property counts toward that figure at the value of the deceased owner’s share. State-level estate or inheritance taxes can apply at much lower thresholds, so check your state’s rules.
The bigger tax issue is capital gains, and it catches people off guard when they later sell. When a co-owner dies, that person’s share of the property gets a “stepped-up basis,” meaning its tax basis resets to fair market value on the date of death.4Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent Your own half keeps its original basis.
An example. You and a co-owner bought a house for $200,000 years ago, and it’s worth $500,000 when the co-owner dies. Your half still has a basis of $100,000. The deceased owner’s half steps up to $250,000. Your total basis is now $350,000. Sell for $500,000 and the taxable gain is $150,000, not $300,000.
Community property owners do even better. Under federal tax law, when one spouse dies both halves of community property receive a stepped-up basis, not just the deceased spouse’s share.4Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent Selling at fair market value immediately after the death can produce zero taxable gain.
Because the step-up depends on fair market value at the date of death, get a professional appraisal dated close to that date if a sale is anywhere on the horizon. The appraisal is your evidence if the IRS ever questions your basis.
Liens That May Survive the Death
Recording the affidavit clears the deceased owner’s name from title. It does not automatically wipe out every claim against the property.
For standard joint tenancy, the general rule in most states is that a lien attached only to the deceased tenant’s interest expires at death, because that interest itself ceased to exist. The surviving tenant takes the property free of the lien.5Internal Revenue Service. 5.17.2 Federal Tax Liens Exceptions exist. A handful of states allow a federal tax lien to follow the property to the survivor even after the debtor joint tenant dies.
Tenancy by the entirety is trickier. The Supreme Court held in United States v. Craft that a federal tax lien can attach to a debtor spouse’s interest in entireties property. If that spouse dies with the lien still in place, the IRS position is that the lien encumbers a one-half interest in the property in the hands of the surviving spouse.6Internal Revenue Service. Notice 2003-60
Run a title search or ask a title company to check for liens, judgments, and encumbrances against the deceased owner before you record the affidavit. Finding a lien after the affidavit is filed and the property is listed for sale can kill a deal. If a lien turns up, a real estate attorney can tell you whether it survived the death and what it takes to clear it.