Transferring property title after death starts with one question: how was the deed held? If the decedent owned the home jointly with right of survivorship, by the entirety, through a living trust, or under a transfer-on-death or Lady Bird deed, a surviving co-owner or named beneficiary can usually clear the title by recording an affidavit of death with a certified death certificate. If the property was in the decedent’s name alone, or held as tenants in common, probate is almost always required before anyone can sign a new deed. Everything else, including which forms you file and whether you need a court order, follows from that single fact.
Pull the Current Deed Before Anything Else
Get a copy of the recorded deed from the county recorder’s office in the county where the property sits. The exact wording on that deed, specifically the vesting language, tells you whether you are filing a one-page affidavit or opening a probate case. Reading it wrong is the most common reason people pay for legal help on a transfer that could have been handled across the counter at the recorder.
While you are there, order a title search or at least check the index for recorded liens. Debts attached to the property do not disappear at death, and finding out about them early changes what you do next.
When an Affidavit Is Enough
Several ownership structures move title automatically at death. The paperwork is mostly about cleaning up the public record.
Joint tenancy with right of survivorship and tenancy by the entirety. The deceased owner’s share passes to the surviving co-owner at the moment of death. The survivor records an affidavit of death along with a certified death certificate, and the decedent’s name comes off the title.
Transfer-on-death deeds. Roughly 30 states and the District of Columbia authorize these. The named beneficiary records the death certificate, and the county updates the title. No probate.
Living trusts. The trust already names a successor trustee and beneficiaries. The successor trustee signs and records a deed transferring the property out of the trust according to its terms.
Lady Bird (enhanced life estate) deeds. Recognized in roughly a dozen states. The beneficiary follows the same affidavit-and-death-certificate path used for joint tenancy.
When Probate Is Required
Two situations push you into court.
Tenancy in common means each co-tenant owns a separate share. When one dies, the share does not pass to the others. It becomes part of the decedent’s estate and moves either under the will or, if there is no will, under the state’s intestacy statute. A probate proceeding is almost always needed before anyone can record a new deed.
Property held solely in the decedent’s name, with no survivorship language, no trust, and no transfer-on-death designation, requires the same. The court appoints an executor if there is a will or an administrator if there is not, and that person then has authority to sign a deed on behalf of the estate.
The Small Estate Shortcut
Every state offers some form of simplified transfer for smaller estates. Thresholds vary widely, from as low as $50,000 in some states to more than $150,000 in others. Heirs file a sworn affidavit with the court or recorder instead of going through full probate.
The catch for real estate: many states exclude real property from their small estate procedures entirely, or set a separate, often lower, threshold for real property. Call the local probate court clerk before filing anything. A single question answered correctly saves weeks.
Documents You Will Need
- A certified death certificate from the vital records office. Not a photocopy, not the funeral home’s informational version. Order several, because the recorder, the mortgage servicer, insurers, and possibly the court will each want one.
- The current recorded deed. Every name and legal description on the new document must match it exactly.
- Letters testamentary or letters of administration, if probate is involved. Without them, no recorder will accept a deed signed by someone claiming to represent the estate.
- An affidavit of death or affidavit of heirship for non-probate transfers. Notarized, and typically referencing the recorded deed and the decedent’s date of death.
Preparing and Recording the New Deed
The transfer document goes by different names depending on the situation. An executor’s deed, personal representative’s deed, or grant deed all serve the same function: conveying the decedent’s interest. For non-probate transfers, an affidavit of death recorded alongside the existing deed is often enough on its own to establish the survivor’s clear title.
Accuracy matters more here than almost anywhere else in a legal filing. The document must carry the full legal names of both the decedent and the person receiving title, exactly as they appear in public records. Use the formal legal description of the property, not the street address. That means the metes-and-bounds reference or plat citation (“Lot 14 of Block 2 of Sunrise Estates Subdivision”), plus the assessor’s parcel number so the tax office links the transfer to the right parcel.
Sign before a notary. A few states accept a subscribing witness when the signer cannot appear before a notary, but this is uncommon. Then submit to the county recorder or registrar of deeds in the county where the property sits. Most offices accept filings in person, by mail, or electronically. Filing fees vary by county.
Debts and Liens That Follow the Property
Inheriting a property does not mean inheriting it free and clear. Debts can attach to the real estate and block any future sale or refinance.
Creditor Claims in Probate
When an estate is in probate, the executor must notify known creditors and publish notice for unknown ones. Creditors then have a limited window, typically a few months, to file claims. If the house is the estate’s main asset and debts exceed its value, the executor may have to sell the property to pay creditors before anything reaches the heirs. This is one of the hardest surprises in estate work, and it is the reason to run a title search early.
Federal Tax Liens
If the decedent owed back taxes, a federal tax lien may be on the property, and it does not disappear at death. Before a clean sale, the IRS lien must be paid or formally discharged. When sale proceeds cover the liability, the executor contacts the IRS Lien Unit for a payoff. When they do not, the executor applies for a discharge using Form 14135.1Internal Revenue Service. Sell Real Property of a Deceased Person’s Estate
Separately, estates large enough to require a federal estate tax return trigger an automatic estate tax lien on everything in the gross estate. This lien exists without any public recording, which can catch a buyer off guard. The executor applies for discharge using Form 4422.1Internal Revenue Service. Sell Real Property of a Deceased Person’s Estate
Medicaid Estate Recovery
Federal law requires every state to seek repayment from the estates of Medicaid recipients who were 55 or older when they received benefits for nursing facility care, home and community-based services, and related hospital and prescription drug costs.2Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets If a parent received Medicaid-funded long-term care, the state Medicaid agency may file a claim or lien against the home.
Recovery is deferred while a surviving spouse is alive, while a child under 21 lives in the home, or while a blind or disabled child of any age resides there.2Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets States also have hardship waiver procedures, with criteria that vary. If Medicaid is in the picture, check the state’s specific rules before recording a transfer.
Lock In the Stepped-Up Basis
When you inherit real estate, your cost basis for capital gains purposes resets to the fair market value on the date of death, not what the decedent paid.3Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent If a parent bought the house for $80,000 in 1985 and it was worth $400,000 at death, your basis is $400,000. Sell for $410,000 and you owe capital gains tax on $10,000, not $330,000.
To claim the stepped-up basis, you need to establish the date-of-death value. For most families this means a professional appraisal. The IRS accepts the appraised value used for state inheritance tax purposes, or the value reported on a federal estate tax return if one was filed.4Internal Revenue Service. Publication 551 – Basis of Assets Residential appraisals typically cost between $525 and $1,300. Skipping this step can cost far more than the appraisal fee when you later sell and cannot document your basis.
If a federal estate tax return was filed, the executor must also file Form 8971 reporting the estate tax value of each asset to the beneficiaries. You cannot use a basis higher than what Form 8971 reports. Overstating basis can trigger a 20% accuracy-related penalty, or 40% if the overstated basis is double or more the correct amount.5Internal Revenue Service. Instructions for Form 8971 and Schedule A
Property in Another State
Real estate is governed by the laws of the state where it sits, regardless of where the owner lived. If the decedent owned property in another state, a separate ancillary probate proceeding is usually required there. The primary probate runs in the home state, and the executor opens a secondary case in each additional state.
Most ancillary courts accept the will admitted in the primary proceeding without requiring it to be re-proved, and some let out-of-state executors file their existing letters of authority instead of going through a full appointment. The real difficulty is intestacy. With no will, the ancillary state applies its own inheritance laws, which may distribute the property differently than the home state would. For anyone owning property in more than one state, this is the strongest practical argument for a revocable living trust or a transfer-on-death deed where available.
After the Deed Is Recorded
Tax Assessor
Notify the local tax assessor of the ownership change so property tax bills go to the right person. Many jurisdictions require a change-of-ownership statement within a set deadline, and missing it can bring penalties. In some states, a transfer at death qualifies for a reassessment exclusion that keeps the tax bill from jumping to current market value. These exclusions are not automatic. You have to apply, usually within the same deadline window.
Insurance
Update the homeowners policy to name the new owner as the insured. A gap in named-insured status can give the insurer grounds to deny a claim. Standard ALTA title insurance policies define “insured” to include heirs and devisees who take title by operation of law, so an existing owner’s title policy may continue to protect you. If you plan to sell or refinance, a buyer’s lender will require a new policy, and any liens recorded since the original policy was issued will appear as exceptions.
Mortgage
Notify the mortgage servicer of the death and the transfer. Federal law prohibits lenders from calling a loan due simply because the property was transferred to a relative as a result of the borrower’s death, as long as the property contains fewer than five dwelling units.6Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions You can keep making payments on the existing terms. What the law does not guarantee is that the servicer will add your name to the loan or let you modify the terms. You inherit the right to keep paying, not the right to renegotiate.