To transfer a home into your name after the other owner has died, you record an affidavit of survivorship and TOD deed confirmation at the county where the property sits, attaching a certified death certificate and the legal description from the recorded deed. The filing itself is short. What trips people up is picking the right form for the ownership type, copying the legal description without errors, and understanding what the transfer does not clear away.
Figure Out Which Affidavit You Need
Two different arrangements let a house pass without probate, and each uses its own paperwork after the death.1Legal Information Institute. Nonprobate Transfer Pull the most recently recorded deed before you do anything else and read how title was held.
If the deed shows two or more people owning together as joint tenants with right of survivorship, the deceased owner’s share passed to you automatically at the moment of death. Nothing new is being created. You file an affidavit of survivorship so the public record catches up and the deceased owner’s name comes off the title.
If instead a single owner (or a married couple) recorded a Transfer on Death deed naming you as beneficiary, you had no ownership interest while they were alive. The owner could have sold the house, refinanced it, or revoked the deed at any time. The transfer takes effect at their death, and you claim the property by recording an affidavit of death or TOD deed confirmation. More than half the states now authorize TOD deeds, many of them following the Uniform Real Property Transfer on Death Act.2Uniform Law Commission. Real Property Transfer on Death Act
Filing the wrong form for the wrong ownership structure breaks the chain of title. Joint tenants use the survivorship affidavit; named TOD beneficiaries use the death affidavit or confirmation form. Some counties combine both into a single form with checkboxes.
Documents to Gather Before You Draft Anything
Missing paperwork is the most common reason a filing gets rejected at the counter, so collect these first.
- Certified death certificate. This is the official version issued by a state or county vital records office with a raised seal, not a photocopy and not a funeral home courtesy copy. Order at least two originals. The recorder keeps one and you will want a spare for the mortgage servicer, the tax assessor, or anyone else who asks.
- The most recently recorded deed. This is where the exact legal description lives, along with the names as they appear on title and the recording reference (instrument number, or book and page). You will copy the legal description verbatim into the new affidavit.
- Assessor’s parcel number. The tax identification code the county uses to track the property. It appears on the property tax bill and can usually be looked up on the county assessor’s website.
- Recording reference for the original deed. The instrument number or book and page for the joint tenancy deed or the TOD deed. This links your new filing to the existing record.
Some counties also require a supplemental form that notifies the assessor of the ownership change so property taxes can be adjusted. Call the recorder’s office and ask what else they want in the packet before you show up.
Filling Out and Notarizing the Affidavit
Most county recorder offices and registrar of titles offices offer blank affidavit forms at the counter or on their websites. If yours does not, a local real estate attorney can draft one.
Enter the legal description of the property exactly as it appears on the original deed. That means every metes-and-bounds call, every lot and block number, every plat reference, and the subdivision name. Add the full legal name of the deceased owner, the date of death, and the county where the death occurred. Every detail has to match the death certificate and the recorded deed. List the surviving owner’s or beneficiary’s full legal name the same way it appears on the original deed or TOD designation.
Sign the completed form in front of a notary public. The notary verifies your identity and adds an official seal. Recorder’s offices in every state require notarization, and a document without an acknowledgment will be rejected on sight.
Recording It at the County
Take the signed and notarized affidavit, the certified death certificate, and any required cover sheets or tax forms to the county recorder’s office (in some states called the register of deeds). Many offices accept mailed filings, but filing in person lets you fix problems on the spot. Recording fees vary widely and generally fall between a few dollars and roughly $100 depending on page count and local fee schedules.
The clerk reviews the packet, assigns a new instrument number, and stamps the recording date. The document becomes part of the public land records and gives legal notice of the ownership change. Turnaround runs from same-day in smaller counties to several weeks in larger ones. The original is usually mailed back to you afterward.
No federal deadline forces you to file within a set number of days. Waiting still costs you. You cannot sell or refinance the property until title reflects your ownership, and title insurers will not write a policy where the record owner is deceased and no affidavit has been filed. As years pass, supporting documents get harder to track down and competing claims become more likely. File as soon as the death certificate is in hand.
Common Filing Problems
Errors in the Legal Description
A transposed digit in a lot number, a misspelled subdivision, or a dropped metes-and-bounds call can cloud title for years. Minor typos can sometimes be fixed by recording a correction instrument signed by someone with personal knowledge of the right information. Bigger discrepancies may require a quiet title action in court. Copy the legal description word for word from the original deed and check it against the assessor’s records before signing.
The TOD Beneficiary Died First
If the named TOD beneficiary died before the property owner, the designation typically lapses. The property does not pass to the beneficiary’s own heirs. It falls back into the owner’s estate and goes through probate unless another estate plan was in place. When multiple beneficiaries were named and one predeceased the owner, state law decides whether the survivors split the deceased beneficiary’s share or whether it lapses.
The TOD Deed Was Revoked
Owners can revoke a TOD deed at any time during their lifetime by recording a revocation form, and selling the property also nullifies the designation because the owner no longer holds title. Before you invest time preparing a confirmation affidavit, search the recorder’s index for any revocation recorded after the original TOD deed. A revoked TOD is void, and the property will instead pass under the owner’s will or by intestacy.
Property in More Than One County or State
File a separate affidavit in every county where the deceased owned real estate. Each county has its own forms, fees, and supplemental requirements. For out-of-state property, confirm the other state recognizes the ownership form or TOD deed that was recorded, because not every state authorizes TOD deeds and survivorship affidavit rules vary.
What Recording the Affidavit Does Not Wipe Out
Skipping probate does not erase the debts and claims attached to the property or to the deceased owner. Three areas catch new owners off guard.
The Mortgage
Federal law blocks the lender from calling the loan due just because the borrower died. Under the Garn-St. Germain Depository Institutions Act, a lender cannot accelerate a residential mortgage of fewer than five units when the property transfers on the death of a joint tenant, on the death of a borrower to a relative, or when a spouse or child becomes an owner.3Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions The loan itself stays in place. You take the property subject to it, keep making the payments, and can be foreclosed on if you stop. Contact the servicer after recording, and send them a copy of the affidavit and the death certificate so they can update their records or discuss assumption.
Existing Liens and Creditor Claims
Liens already recorded against the property — mortgages, home equity lines, tax liens, mechanic’s liens — survive the death and stay attached no matter how title moves. Whether unsecured creditors like credit card companies or medical providers can reach a house that passed outside probate depends on state law. Under the Uniform Real Property Transfer on Death Act, a TOD deed does not shield the property from the deceased owner’s creditors if the probate estate lacks enough assets to pay them. A lien tied only to the deceased joint tenant’s interest usually dies with that interest, but a lien against both joint tenants, or one recorded before the joint tenancy existed, follows the property. Run a title search before spending money on renovations or assuming the property is clear.
Medicaid Estate Recovery
Federal law requires every state to seek recovery of Medicaid costs paid for individuals who were 55 or older when they received benefits, at minimum from assets that pass through probate. Federal law also lets states define “estate” broadly enough to reach property that bypassed probate through joint tenancy, survivorship, life estates, living trusts, or similar arrangements.4Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets In states that use the expanded definition, inheriting a house through a TOD deed or right of survivorship does not shield it from a recovery claim. Other states limit recovery to probate assets, and the same transfer would be safe. Recovery cannot exceed what Medicaid actually spent on the individual’s care, and states must wait until there is no surviving spouse, no child under 21, and no disabled child before pursuing a claim. If the deceased received Medicaid, especially for nursing home or home health care, check with the state Medicaid agency before treating the property as free and clear.
Your Tax Basis in the Property
When you inherit real estate, your cost basis for capital gains purposes is generally the property’s fair market value on the date of death, not what the deceased originally paid.5Internal Revenue Service. Publication 551 (12/2025), Basis of Assets This step-up applies to both survivorship transfers and TOD transfers. If the deceased bought the house for $150,000 decades ago and it was worth $450,000 on the date of death, your basis is $450,000. Sell it for $460,000 and your taxable gain is $10,000, not $310,000.
Joint tenancy gets treated more narrowly. If you and the deceased each paid half of the original price, only the deceased’s half steps up to fair market value at death, and your half keeps whatever adjusted basis you already had. For married couples who held property as joint tenants or tenants by the entirety, half the value is included in the deceased spouse’s estate and the survivor’s basis in that half is stepped up. In community property states, both halves can receive a step-up at the first spouse’s death.5Internal Revenue Service. Publication 551 (12/2025), Basis of Assets
Get the date-of-death fair market value documented now, through an appraisal or a broker’s valuation, and keep it with your records. You will need it if you ever sell.