In our last post we discussed the difference between ownership and title. Next we examine the relationship between the two: how we determine who owns a property by examining title to a property. Though the title company handling settlement will always advise who owns the subject property, it is helpful to know how to figure out who is the owner, particularly for purposes of drafting a listing agreement or contract and gathering necessary documents for settlement.
One must first review the deed. If there are multiple owners listed as grantees on the deed, and one or more have passed away, there are three means of determining who owns the property:
- Rights of Survivorship
Rights of survivorship exist if more than one individual held title to a property and the deed contained rights of survivorship (on the deed look for the words “with rights of survivorship”). You will find such rights for tenants by the entirety (reserved for married couples) and joint tenants. If one of the owners passes, the survivor becomes sole owner of the property. The surviving party will sign documents at settlement. At closing, the title company will need a copy of the death certificate.
In the event that the property was held in the name of a trust, the trustee holds actual legal title in Virginia. This means that the trustee will sign all documents at settlement as well as the contract and listing agreement. The title company will need a copy of the trust.
In the case of an estate, the owner has passed and there are no survivorship rights, and the property is not held in a trust. The owner either passed testate, meaning with a will, or intestate, meaning without a will. In the case of an owner passing testate, property will go to devisee(s) as designated in the decedent’s will. Such devisees need not be related. In the case of an owner passing intestate, property will go to the deceased owner’s heirs, generally related by blood, adoption or marriage. The title company will need the death certificate of the decedent, and a will if one exists.
If you need further assistance determining who should sign your listing agreement and/or contract, call Highland Title at (703) 723-3300 to discuss with an experienced title attorney.