South Dakota Affidavit Terminating Joint Tenancy or Life Estate Interests

Introduction

Key Things to Know

1. 1

   South Dakota's own label for the instrument class, 'affidavit terminating joint tenancy or life estate interests', comes from SDCL 7-9-7(1), the register-of-deeds acceptance statute, not from chapter 21-44 which creates the filing. Recording it does not transfer anything. It makes the certified death record prima facie evidence of the death and of the termination, so the land records show what already happened.

2. 2

   Two routes, and they are inverted. SDCL 21-44-2 records the certified death record as the main document and makes the affidavit an attachment identifying the land. SDCL 21-44-27 makes the affidavit the main document, with four prescribed contents, accompanied by a certified copy of the death certificate. The second is available only where the decedent's spouse is the sole surviving joint tenant.

3. 3

   SDCL 21-44-27's four contents are specific: the name and date of death of the deceased joint tenant, the legal description of the real property held in joint tenancy, the name of the surviving spouse of the deceased joint tenant, and a statement that the surviving spouse is the sole surviving joint tenant in the real property. SDCL 21-44-2 prescribes only one content, the legal descriptions of the property involved.

4. 4

   Under SDCL 21-44-27 any interested person may file it, not just the surviving spouse. The statute says any interested person may terminate the joint tenancy by furnishing the register of deeds with the affidavit, so a title company, a lender or an adult child can sign. Under SDCL 21-44-2 the affiant is the person causing the certificate to be recorded, which is also not limited to the survivor.

5. 5

   The county register of deeds, in the county where the land is situated. Not a court on either affidavit route. Chapter 21-44 does also contain a circuit court route for the life estate case, which ends in a recorded judgment that becomes prima facie evidence only thirty days after it is recorded, so the affidavit route is both faster and cheaper where it fits.

6. 6

   The fee is statutory. SDCL 7-9-15(1) sets thirty dollars for the first fifty pages plus two dollars for each additional page beyond fifty, as the residual fee for deeds, mortgages and all other instruments not specifically provided for. A certified copy of a recorded instrument is five dollars for the first page plus one dollar for each additional page. No certificate of value is required: SDCL 7-9-7(4) lists deeds and succession affidavits, and this affidavit is not on that list.

7. 7

   Format rules exist but almost none of them are enforced by rejection. SDCL 7-9-15(1) says a real estate document shall conform to SDCL 43-28-23 but may not be rejected unless it is not sufficiently legible or cannot be reproduced, and SDCL 43-28-23 adds that a nonconforming document has the same effect as a conforming one for all recording purposes, including establishing priority. A certified vital record attached to documents is exempt from the format section entirely, which is how a death certificate travels with a conforming affidavit.

South Dakota Requirements for Affidavit of Death

• Pick the Right Route First: SDCL 21-44-2 or SDCL 21-44-27

  South Dakota has two routes and they are inverted, so this decision changes which document you lead with. SDCL 21-44-27 is available only where the spouse of the decedent is the sole surviving joint tenant in the real property, and there the affidavit is the main document with four prescribed contents. SDCL 21-44-2 covers everything else, reaching all cases of joint tenancy in lands or personal property and all cases where an estate, title, interest or lien was to continue only during the life of a named person, and there the certified death record is the recorded document with the affidavit attached to it. If more than one joint tenant survives, or the survivor is not a spouse, or a life estate ended, you are on 21-44-2.

• The Name and Date of Death of the Deceased Joint Tenant

  Content item (1) of the four in SDCL 21-44-27, and the central fact on either route. Give the full legal name as the death certificate states it, plus every variant appearing in the recorded deed, with a statement that they are the same person. The register's index is searched by name, so a deed reading one form of the name against a death certificate reading another is the usual reason one of these has to be re-recorded.

• The Legal Description of the Real Property

  Content item (2) under SDCL 21-44-27, and the only content SDCL 21-44-2 prescribes for the general route, where the affidavit exists in order to identify the property affected by the death. Copy the legal description character for character from the recorded deed rather than describing the property from memory. SDCL 7-9-7(1) also makes a legal description a condition of the register accepting the document at all, so this is the one item that is required twice over.

• The Name of the Surviving Spouse

  Content item (3) of SDCL 21-44-27. Name the surviving spouse of the deceased joint tenant, in full legal form, matching how that person holds title elsewhere so the register's index lines up. This item is separate from the affiant's name, because the section permits any interested person to file: where a title company or a lender signs, the spouse is still the person named here as the one whose interest is being confirmed.

• A Statement That the Surviving Spouse Is the Sole Surviving Joint Tenant

  Content item (4) of SDCL 21-44-27, and the one that is easiest to leave implied. The section opens with the condition that the spouse of a decedent is the sole surviving joint tenant in real property, and item (4) requires the affidavit to say so expressly. Write the sentence. If more than one joint tenant survives, the condition is not met and this route is unavailable, which sends you to SDCL 21-44-2 instead.

• A Certified Copy of the Death Certificate, From the Right Officer

  Both routes want it, in slightly different words. SDCL 21-44-27 provides that the affidavit shall be accompanied by a certified copy of the death certificate of the deceased joint tenant. SDCL 21-44-2 is more particular about the certifier: a copy of the record of the death, duly certified by any officer who is required by the laws of the state or county in which the record is made to keep a record of deaths occurring within that officer's jurisdiction. So an out-of-state certificate is fine if certified by the officer charged with keeping that record where the death happened. Order several certified copies. Helpfully, SDCL 43-28-23 exempts a certified vital record attached to documents from the format standards, so the certificate itself does not need to meet the paper and margin rules.

• The Extra Items SDCL 7-9-7(1) Makes a Condition of Acceptance

  This is a separate gate from the chapter 21-44 contents and it is where the instrument gets its statutory name. SDCL 7-9-7(1) provides that no register of deeds may accept for record an affidavit terminating joint tenancy or life estate interests that does not include the names of the grantor and the grantee, the names of the joint tenant, the post office address of the grantee or lessee, and a legal description of the property. So include those alongside the chapter 21-44 contents. One thing it does NOT require: a certificate of value. SDCL 7-9-7(4) attaches that to deeds, contracts for deed dated after July 1, 1988 and succession affidavits, and this affidavit is not on the list.

• Format, a Notary, and Why Most of the Format Rules Have No Teeth

  SDCL 43-28-23 asks for sheets no larger than 8.5 by 14 inches and no smaller than 8.5 by 11 inches, black ink, type no smaller than 10-point, white paper of not less than twenty pound weight, a blank space of at least three inches at the top of the first page with the right half reserved for the register of deeds, all other margins a minimum of one inch, and a title prominently displayed below that blank space. Then it declines to enforce most of it: a document that does not conform to subdivisions (1) to (5) has the same effect as a conforming document for all recording purposes, including establishing priority, and SDCL 7-9-15(1) bars rejection for non-compliance unless the document is not sufficiently legible or cannot be reproduced. Legibility is the standard with teeth. On swearing, neither operative section contains a notarization clause, and the words notarized, acknowledged, oath and sworn appear nowhere in either, so notarize it because it is an affidavit rather than because a statute says to.