Natalia Vander Laan
When the title to real property is held as joint tenants with right of survivorship or as community property with right of survivorship, then the right of survivorship is created upon the death of the co-tenant or upon the death of the deceased spouse, respectively. In other words, the deceased co-tenant’s or the deceased spouse’s interest terminates and the entire real property transfers by operation of law to the surviving co-tenant or the surviving spouse. Consequently, no probate is necessary.
However, to make the transfer confirmed, the surviving co-tenant or the surviving spouse must execute and record, in the county where the real property is located, an affidavit of death of co-tenant or, respectively, an affidavit of death of spouse. An affidavit is a sworn statement in writing. The affidavit of death should be sworn to and signed by a person who has knowledge of the facts stated in the affidavit—typically, the surviving joint tenant or the surviving spouse, but it can also be signed by their attorney.
The affidavit of death should state the family relationship, if any, of the affiant (the person making the affidavit) to the deceased person. It should also contain a description of the document by which the ownership with the right of survivorship was created and it should state the description of the property that is subject to the right of survivorship. Finally, the date and place of death of the deceased person should be stated.
The affidavit must be recorded together with the certified copy of the death certificate. Typically, a recorded document should not state any sensitive personal information such as a social security number. In fact, most Nevada counties require a statement, either on top of the document being recorded or on a separate page, stating that the document presented for recording does not contain the social security number of any person. The exception occurs when such information is required by the statute, like in the case of an affidavit of death being recorded together with the death certificate, which contains sensitive personal information, including the social security number. Therefore, in the case of the affidavit of death, the reason for such inclusion must be stated.
Every month, the county recorder sends all the information listed in the affidavits of death received by the county recorder office during the immediate preceding month to the Department of Health and Human Services.
Recording the affidavit of death of joint tenant or spouse creates a disputable presumption that the title to the real property is now vested in the surviving joint tenant or the surviving spouse.
When the title to real property is held in the name of the trust, an affidavit of death of trustee should be filed at the recorder’s office in the county where the real property is located. The affidavit of death of trustee is very similar in form to the affidavit of death of joint tenant or spouse and the recording requirements are also alike.
In addition to confirming the transfer of the deceased person’s interest to the surviving tenant or spouse, the recording of the affidavit provides notice to third parties of the name of the person currently holding the title to the real property as well as the type of the current ownership.
