Minnesota Affidavit of Identity and Survivorship
Minnesota Affidavit of Identity and SurvivorshipWhen someone dies in Minnesota, they often own real estate. That real estate could be a home, rental property, cabin, or land.
What happens to the land when someone dies? Where does it go? How do you transfer title to heirs? This article aims to provide a legal analysis of Minnesota Affidavits of Identity and Survivorship and how that affidavit helps people transfer title to real property
Landowners in Minnesota own the “title” to the property. This title interest is different from being on a mortgage. The deceased person often agreed with a bank for a mortgage on the home. What are heirs supposed to do when the deceased person was on the loan? How does that effect title?
Minnesota differentiates ownership of “title” from being an signor on a mortgage. A mortgage is simply a security interest that a bank has on the home. It is a lien interest. That loan is “secured” by the land. Huh? Basically, the bank has a secured lien on the home because they loaned a person money so that they could live in the home and eventually “pay-it-off”. Most people understand this.
However, it is important to know that people still own a separate “title” interest in the land. This title interest is “recorded” with the county in which the person lived. For instance, if you own a home in Minneapolis, you have a recorded “title” interest with the Hennepin County Recorders Office. You likely received a “deed” for that property when you bought the home.
Deeds come in many different forms. Common deeds are: quit claim deeds and warranty deeds. This article will not get into the definition of what each deed means. Rather, this article focuses on the title issues associated with those deeds. When you buy a home or receive title to a home, that deed interest is recorded in the county recorders office where you live. You have “title” to that property and Minnesota law recognizes that.
If someone dies, they still had a recorded deed interest with the county where they live. Sometimes – and this is important – the deceased person owned “title” to a home as “joint tenants” with another person. This scenario is very common when married couples own a property together. Married couples most often take “title” to the property as joint tenants. Minnesota law tells us that a joint tenant automatically receives title to the property when the other title holder (the husband or wife) dies.
But, that “title” interest still needs to be made official. The state or county doesn’t do the work for you. The survivor (in the joint tenancy scenario) needs to inform the county that their spouse has died. The spouse can do this by filing the correct legal documentation with the county – an Affidavit of Identify and Survivorship.
As discussed above, when two people own real property (a home) as joint tenants, they have automatic survivorship rights in the title of the home. (This is very different for tenants in common but that is not discussed in this article). In a joint tenancy scenario, the survivor needs to file an Affidavit of Identity and Survivorship with the county recorder. The reason that this must be done is that it keeps a proper record of who now “owns” the home. If the proper record is made, then the new owner (not the deceased person) has the legal right to sell the property or otherwise convey title to someone else.
The Affidavit of Identify and Survivorship is a legal “form” that declares:
It is important to keep in mind that a certificate of death needs to be recorded, along with the affidavit. These two documents are necessary to have a valid, recorded title interest.
If you have questions about the Minnesota Affidavit of Identity and Survivorship, contact the Minnesota probate law firm today. Joseph M. Flanders has years of experience counseling clients on all matter of title and probate law.
Call today for a free initial consultation at: 612-424-0398.
