Legal Question in Real Estate Law in California
Need to remove deceased husband's name from house title. Recorder's office says I need an Affidavit of Death and I can't seem to find one.
2 Answers from Attorneys
That's because an Affidavit of Death is not a fill-in-the-blanks form. This is not to say someone isn't printing and selling them, it's just that the contents of each one would be somewhat unique.
The requirements for an affidavit of death are pretty much set forth in Probate Code section 210(a) and include a legal description of the real property affected, and an attested or certified copy of a record of the death made and filed in a designated public office as required by law (in other words, a death certificate). The Affidavit itself must be subscribed and sworn before a notary and should state the essential facts and that the person making the affidavit has personal knowledge thereof.
What follows is copied from a form-creation guide available to lawyers, and while it is not a fill-in-the-blanks for in itself, it might serve as a sort of template or guide to creating a form. Note that the recorder's office prefers plenty of space at the top of the page:
Above space solely for recorder's use
Declaration of Death of Joint/Life Tenant
STATE OF CALIFORNIA
ss.:
COUNTY OF [NAME OF COUNTY]
Declarant, [name of declarant], states as follows:
1. Declarant is of legal age.
2. [Name of deceased joint/life tenant] died on [date of death].
3. The fact of death is set forth in the attached certified copy of the Certificate of Death,
[EITHER:]
4. Declarant and [name of decedent] held real property located in [name of county], California, as [joint tenants/remainder beneficiary and life tenant] by deed dated [date of deed], recorded as Instrument No. [designation of instrument] on [date of instrument] in [Book [designation of book], page [number of page]/[other specification of source]], of the Official Records of [name of county].
[OR:]
4. The legal description of the property is as follows: [description of property].
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: [date of declaration of death]
[Name of declarant]
Another possibility for you is to look at examples of affidavits of death other people have filed. Using the computers at the recorder's office might be a way to find several to see what they look like.
If you really need to find a pre-printed form, ask at a local title company.
Actually there ARE fill in the blanks forms for an affidavit of death. If you email me I can send you one in fillable .pdf form that I have from when I was a vice-president at the parent company for Fidelity National Title and Chicago Title.
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