How to Remove a Deceased Person from a Deed in Florida

When a co-owner of real property dies in Florida, the deceased person's name remains on the deed in the county's official records. The public records do not update automatically. To clear the title and reflect current ownership, the surviving owner or the decedent's estate must take affirmative steps to remove the deceased person from the deed. The specific process depends on how the property was titled at the time of death.

Joint Tenancy with Right of Survivorship

If the property was held as joint tenants with right of survivorship, the surviving joint tenant automatically becomes the sole owner of the property upon the other joint tenant's death. This transfer occurs by operation of law and does not require probate. However, the public records still show both names on the deed, so the surviving owner must record certain documents to update the title.

To remove the deceased joint tenant from the deed, the surviving owner should record the following in the county where the property is located:

1. Certified copy of the death certificate: The death certificate must be a certified copy issued by the Florida Bureau of Vital Statistics or the equivalent agency in the state where the death occurred. An informational or uncertified copy is not sufficient for recording purposes.
2. Affidavit of survivorship (affidavit of death): This is a sworn statement executed by the surviving joint tenant or another knowledgeable person. The affidavit identifies the deceased co-owner, references the recorded deed that established the joint tenancy, states that the decedent has died, and confirms that the surviving joint tenant is now the sole owner by operation of law.

Once these documents are recorded, the chain of title reflects that the surviving owner holds the property free of the deceased joint tenant's interest. No new deed is required in a joint tenancy situation because the survivorship right was already established in the original deed.

Tenancy by the Entirety (Married Couples)

In Florida, married couples who acquire property together are presumed to hold title as tenants by the entirety. This form of ownership includes an automatic right of survivorship. When one spouse dies, the surviving spouse becomes the sole owner without probate.

The process for removing the deceased spouse's name from the deed is the same as for joint tenancy: the surviving spouse records a certified death certificate and an affidavit of survivorship with the county clerk. The affidavit should reference the deed that created the tenancy by the entirety and state that the surviving spouse is now the sole owner.

Tenants in Common

If the property was held as tenants in common, the situation is fundamentally different. Tenancy in common does not include a right of survivorship. When one tenant in common dies, their share of the property does not automatically pass to the surviving co-owner. Instead, the deceased owner's interest becomes part of their estate and must be transferred through probate or another legal mechanism.

In Florida, if a deed names two or more owners without specifying the type of tenancy, the law presumes a tenancy in common. This means that unless the deed explicitly states "joint tenants with right of survivorship" or the owners are married (creating a presumption of tenancy by the entirety), the deceased owner's share will need to go through probate.

To transfer the deceased tenant in common's interest, the personal representative of the estate must:

1. Open a probate proceeding in the appropriate Florida circuit court
2. Obtain letters of administration or letters testamentary
3. Execute a personal representative's deed transferring the decedent's share to the beneficiary named in the will or the heir under Florida's intestacy laws
4. Record the deed with the county clerk

If the estate qualifies, summary administration may be used as a faster alternative to formal probate.

How to Determine the Type of Ownership

The type of ownership is determined by the language in the deed that transferred the property to the co-owners. To find out how the property is titled, you should obtain a copy of the most recent deed from the county's official records. In Miami-Dade County, deeds can be searched and obtained through the Miami-Dade County Clerk of the Courts official records search.

Look for specific language in the deed such as:

• "as joint tenants with right of survivorship and not as tenants in common" — this establishes joint tenancy with survivorship
• "as tenants by the entirety" — this applies to married couples and includes survivorship
• "as tenants in common" or no tenancy designation — this means there is no survivorship right

The Importance of a Title Search

Before recording documents to remove a deceased person from a deed, it is advisable to conduct a title search. A title search examines the complete history of ownership and any encumbrances recorded against the property. This is important because:

• There may be liens, judgments, or mortgages recorded against the deceased owner's interest that need to be addressed
• The deceased owner may have executed a subsequent deed, such as a transfer on death deed, that affects the chain of title
• There may be errors in prior deeds that need to be corrected before the title can be cleared
• If the property was the decedent's homestead, there may be constitutional protections for the surviving spouse or minor children that affect how the property can be transferred

A thorough title search ensures that the surviving owner or beneficiary receives clean, marketable title that will not present problems in future sales or refinancing transactions.

Miami-Dade County Recording Fees

Recording documents in Miami-Dade County requires payment of fees to the Clerk of the Courts. The current fee schedule includes:

• Recording fee: $10.00 for the first page of each document and $8.50 for each additional page
• Death certificate recording: The same per-page recording fee applies
• Affidavit recording: Subject to the same per-page fee

In most cases, recording an affidavit of survivorship and a death certificate does not trigger documentary stamp tax because no consideration is being exchanged. The survivorship transfer occurs by operation of law, not by sale. However, if a new deed is issued through probate, documentary stamp tax may apply depending on the circumstances.

Documents can be submitted for recording in person at the Miami-Dade County Clerk's office or through an approved electronic recording service.

Common Mistakes to Avoid

When removing a deceased person from a deed in Florida, there are several common errors that can create title problems:

• Using a quitclaim deed from the surviving owner to themselves: This is unnecessary when there is a right of survivorship and can actually cloud the title rather than clear it
• Failing to record the death certificate: The death certificate is an essential link in the chain of title. Without it, a title company may not recognize the surviving owner's claim
• Assuming tenancy in common includes survivorship: This is a frequent and costly mistake. If the deed does not specify survivorship, the deceased owner's interest must go through probate
• Not addressing homestead issues: If the property was the decedent's homestead and the decedent was married, Florida's homestead provisions may require additional steps to clear the title
• Ignoring liens or judgments: Any liens against the deceased owner may need to be resolved before the title can be fully cleared

Contact a Florida Real Estate and Probate Attorney

Removing a deceased person from a deed in Florida can be straightforward in some cases and complex in others. The Law Offices of Albert Goodwin helps families throughout Miami-Dade County clear title to property after a co-owner's death. Whether you need to record a simple affidavit of survivorship or navigate a probate proceeding, we can guide you through the process. Call us at 786-522-1411 or email [email protected] to schedule a consultation at our Coral Gables office.