When there are two names on a property deed, most people assume the surviving owner automatically keeps the property free and clear. That can be true, but it depends entirely on how the deed is worded. Different types of co-ownership can result in significantly divergent outcomes.
An estate planning attorney can explain the difference between the types of co-ownership and how probate may become involved when one owner dies. Properly written and recorded deeds are a critical component of estate planning that can mean ensuring your loved one has the security of a permanent residence.
Types of Co-Ownership and How They Work
The most common type of co-ownership in Oklahoma is “joint tenants with right of survivorship.” This carries a built-in survivorship feature: when one owner dies, their interest in the property automatically passes to the surviving owner, rather than following the deceased owner’s will or Oklahoma’s inheritance laws. This type of co-ownership allows jointly-held property to bypass probate court in most cases. This succession of ownership only applies if the deed language stipulates it.
When a joint tenant dies, the survivor doesn’t inherit through probate, but still needs to formally clear title before the property can be sold or refinanced. Oklahoma allows a surviving joint tenant to file an Affidavit of Surviving Joint Tenant with the county clerk where the property is located, along with a certified copy of the deceased owner’s death certificate. The affidavit must identify the previously recorded deed, confirm the decedent is the same person named on it, and describe the property. Without the recorded affidavit, the surviving owner’s title is not marketable and title companies or buyers are unlikely to purchase or insure the property.
Tenancy in Common: A Different Outcome
Another type of co-ownership is “tenants in common,” which does not include survivorship rights. When a deed lists “tenants in common” or does not specify a type of ownership, Oklahoma law presumes tenancy in common.
Under tenancy in common, each owner holds a separate and distinct share which does not automatically transfer to the other owner when one dies. Instead, the deceased owner’s share becomes part of their probate estate and passes under their will. In the absence of a will, Oklahoma’s intestate succession law applies. Without a survivorship provision, a deceased owner’s share of real estate generally must pass through probate before heirs receive clear title. For the surviving owner, that often means months of court involvement, administrative fees, and delays, even if the property had been their primary home for years.
The Transfer On Death Deed Alternative
To avoid probate without creating a full joint tenancy deed, owners should consider the Transfer On Death deed allowed under Oklahoma’s Nontestamentary Transfer of Property Act. A TOD deed lets an owner name a beneficiary who receives the property automatically at death, while the owner keeps full control, including the right to sell, mortgage, or revoke the deed during their lifetime. Unlike joint tenancy, naming a TOD beneficiary gives that person no ownership interest while the owner is alive. After the owner’s death, the beneficiary must record an affidavit and certified death certificate with the county clerk within nine months or the deed becomes void and the property reverts to probate.
Don’t Assume Anything Until You Read Your Deed
Whether a property passes automatically or ends up in probate court can come down to a few words in a decades-old deed. Consult with Kincannon Law’s attorneys if you’re unsure about how your property is titled or if you recently lost the co-owner. The deed should be reviewed before assuming probate can be avoided. Learn what Oklahoma law requires in your situation and get help filing the correct paperwork. Call today to schedule a consultation.