What is an Affidavit of Surviving Joint Tenant and Do I Need One?

What is an “affidavit of surviving joint tenant”?

This type of document is very common in Oklahoma real estate documents. An affidavit of surviving joint tenancy has a crucial role in keeping ownership records current and real estate titles accurate. It makes title “marketable” when a right of survivorship exists. This document may also be known as an “affidavit of death of joint tenant”, “survivorship affidavit”, or “affidavit of joint ownership.”

Here’s a quick guide to break down what this document does. At the end, take the quick quiz to determine if you need to file one with your county clerk’s office.

Real Estate Affidavits

Individual personal statements in the form of sworn affidavits are common in real estate records in Oklahoma. The affidavit of surviving joint tenant is a version of real estate affidavit which states and affirms particular facts surrounding the end of one joint tenant’s interest in a property through death in favor of the surviving joint tenant(s). This type of affidavit must be notarized. 

Joint Tenancy

Property can be co-owned in Oklahoma by more than one individual, which often results in an ownership structure called joint tenancy (making the co-owners the joint tenants). Note: this type of ownership is not like rental tenants. This type of affidavit is used for residential properties only; it is highly uncommon for commercial property owners to use joint tenancy ownership. 

See our article about types of co-ownership of real estate in Oklahoma to learn more. 

Surviving Joint Tenant

The “surviving” portion of “surviving joint tenant” is a simple notation that one (or more) of the joint tenants and co-owners has lived longer than the now deceased co-owner, meaning the person completing this type of affidavit has “survived” the other owner. 

Documentation Required for an Affidavit of Surviving Joint Tenant

Most affidavits of surviving joint tenant state the details of the property (such as the legal description and address), acknowledge the date of death of the now deceased co-owner, and attach an original copy of the death certificate as an exhibit. 

When is an affidavit of surviving joint tenant required?

The most common use of an affidavit of surviving joint tenant is when two spouses own their primary residence together, and one spouse dies. The surviving spouse should complete, notarize, and record an affidavit of surviving joint tenant to remove the now deceased co-owner’s name from the ownership records going forward. A knowledgeable and experienced probate attorney should handle this issue as a standard part of legal probate services.

What happens if an affidavit of surviving joint tenant is not recorded?

A quiet title action may be required to clarify the new property ownership before the property can be sold. These actions fix issues that exist in the chain of title to real estate. It is much cheaper, faster, and easier to complete the affidavit of surviving joint tenant before a quiet title action becomes necessary. 

What is the purpose of an affidavit of surviving joint tenant?

This type of affidavit provides clarity in the real estate ownership records, which helps the legal title records for the property remain marketable and ready to sell to a new owner (whether now or sometime in the future). 

Where to I file an affidavit of surviving joint tenant in Oklahoma?

Oklahoma law requires this type of instrument to be recorded with the county clerk’s office in the county where the property is located. For example, properties located in Oklahoma County must file affidavits with the Oklahoma County Clerk’s Registrar of Deeds – in person, by mail, or through the E-Filing system. Many counties in Oklahoma using Simplifile.com for E-filing.

Do I need an affidavit of surviving joint tenant?

You may need an affidavit of surviving joint tenant if: 

1. You were a co-owner of real estate
2. The deed that gave you an ownership interest in the property uses some variation of the phrase “as joint tenants with right of survivorship”
3. One or more of your co-owners has died 

Get Help From Oklahoma Real Estate Attorneys

Contact Avenue Legal Group to discuss affidavits of surviving joint tenants, quiet title actions, and other curative title services.  

Prefer to handle the affidavit yourself? Contact our firm to purchase a template of an affidavit of surviving joint tenant which is fully compliant with Oklahoma law, as well as instructions for how to use it.