Utah Affidavit Terminating a Joint Tenancy or Life Estate

Introduction

Key Things to Know

1. 1

   Termination of an interest in real estate, Affidavit, is the heading Utah Code 57-1-5.1 carries, and the same instrument serves four situations: a joint tenancy, a tenancy by the entirety, a life estate, and a recorded TOD deed. Utah Code 75-6-413(5) invents no second document. It borrows this one, requiring an affidavit in substantially the form found in Section 57-1-5.1.

2. 2

   The obligation splits inside the state, and it is the one thing to get right before you decide whether to bother. For a joint tenancy, a tenancy by the entirety or a life estate, subsection (1)(b) says the termination may be disclosed by an affidavit. For a TOD deed, Utah Code 75-6-413(5) says one shall be recorded following the transferor's death. Optional on one branch, compulsory on the other.

3. 3

   Nothing is lost by not filing on the permissive branch, because the interest has already ended. Subsection (1)(a) states it flatly: a joint tenancy, tenancy by the entirety or life estate interest in real estate terminates upon the death of a tenant holding the interest. Its whole function is to disclose that of record, and the statutory form says so in its own words, that the instrument is given to terminate of record the decedent's interest.

4. 4

   Five things go in, and the third sends most people back to the recorder's office. Subsection (1)(b) requires one that cites the terminated interest being disclosed, contains a legal description of the affected property, references the entry number plus the book and page of the creating instrument, attaches as an exhibit a copy of the certificate of death or other government agency document described in Utah Code 75-1-107, and is recorded with the county recorder. Entry number plus book and page, not one or the other.

5. 5

   The affiant does not have to be the survivor. The statutory form asks only for someone being of legal age and being first duly sworn, and nothing in the section requires the signer to be the surviving joint tenant, the remainder holder or the beneficiary. What the signer must be able to swear is the same person fact linking the decedent to the earlier recorded document. A notary is required and no witnesses are.

6. 6

   Utah Code 75-1-107 defines the exhibit, and it reaches further than a certificate. Subsection (1)(b) treats a certified or authenticated copy issued by an official or agency of the place where the person died as prima facie evidence of the fact, place, date and time of death, plus the identity of the decedent. Subsection (1)(c) gives equal weight to a certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is dead. Subsection (1)(d) allows clear and convincing evidence, including circumstantial evidence, where neither exists.

7. 7

   Subsection (2) of the same section is a different affidavit and it is easy to misread as part of the death one. It lets a determinable or conditional interest in real estate be terminated by one that cites the interest, gives the legal description, references the entry number plus book and page of the creating instrument, and is recorded. Four requirements, not five: the exhibit drops out entirely, because nobody has died.

Utah Requirements for Affidavit of Death

• A Citation of the Terminated Interest

  The first of the five things Utah Code 57-1-5.1(1)(b) requires: the affidavit must cite the terminated interest that is being disclosed. Name it plainly, as a joint tenancy, a tenancy by the entirety, a life estate, or an interest under a recorded transfer on death deed, because that choice also decides whether your filing is optional under 57-1-5.1 or mandatory under 75-6-413(5). The parallel affidavit in subsection (2) uses the same requirement for a determinable or conditional interest.

• The Entry Number, and the Book and Page, of the Creating Document

  Utah asks for two separate locators where most states ask for one. Subsection (1)(b)(iii) requires the affidavit to reference the entry number and the book and page of the instrument creating the terminated interest, and the statutory form in subsection (3) turns it into a sworn sentence naming the document by its date, its entry number, its book and its page in a named county recorder's records. On the transfer on death branch, 75-6-413(5)(b) asks for the same pair for the previously recorded transfer on death deed. Get the recorded document itself from the county recorder; these numbers are not on a tax notice or a mortgage statement.

• The Same Person Recital

  The single substantive sentence in the statutory form, and the whole reason the affidavit works. It states that the named deceased person, being the decedent in the attached certificate of death or other document witnessing death, is the same person as the person named as a party in the earlier recorded document. Copy the name from the recorded document exactly as it appears there, including any middle initial or variant, and give the name on the death certificate too where the two differ. A mismatch between the two names is the most common reason one of these has to be re-recorded.

• A Legal Description of the Affected Property

  Required by subsection (1)(b)(ii) on the death branch, by subsection (2)(b) on the determinable or conditional interest branch, and by 75-6-413(5)(a) on the transfer on death branch, so there is no version of this filing that skips it. The statutory form places it in the purpose sentence: this affidavit is given to terminate of record the decedent's interest in the following described property located in a named Utah county. Copy the description from the recorded document rather than from a tax notice, so that it matches the entry, book and page you are also citing.

• A Copy of the Death Certificate, Attached as an Exhibit

  Subsection (1)(b)(iv) requires that the affidavit have attached as an exhibit a copy of the death certificate or other document issued by a government agency as described in Utah Code 75-1-107, and 75-6-413(5)(c) repeats it with the words certifying the transferor's death. Read the cross-reference before you decide what to bring: 75-1-107(1)(b) describes a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred, treating it as prima facie evidence of the fact, place, date and time of death and the identity of the decedent. Subsection (1)(c) extends the same weight to a certified or authenticated copy of any record or report of a governmental agency, domestic or foreign. Take a certified copy and the question does not arise. Note that subsection (2) of 57-1-5.1 omits this exhibit entirely, because no death is involved on that branch.

• The Oath and the Notary Jurat from the Statutory Form

  Both halves are printed in Utah Code 57-1-5.1(3) rather than left to a general rule. The affidavit opens with the oath, I, name of affiant, being of legal age and being first duly sworn, depose and state as follows, and closes with the jurat, subscribed to and sworn before me on a stated day, over a notary public signature line. Sworn before a notary, not merely acknowledged. The affiant need only be of legal age: nothing in the section requires the signer to be the survivor, the remainder holder or the beneficiary. No witnesses are required anywhere in the section.

• On a Transfer on Death Deed: Recording Is Mandatory, and Survivorship May Override It

  Utah Code 75-6-413(5) converts this filing from optional to compulsory: following the death of the transferor, an affidavit in substantially the form found in Section 57-1-5.1 shall be recorded in the office of the recorder of the county in which the affected property is located. Check 75-6-413(3) before you assume you are on this branch, because if the transferor was a joint owner and is survived by one or more other joint owners, the property belongs to the surviving joint owner or owners with right of survivorship and the transfer on death deed is effective only where the transferor was the last surviving joint owner. Two further rules shape what the beneficiary receives: 75-6-413(1)(b) makes the beneficiary's interest contingent on surviving the transferor and otherwise lapses it, and 75-6-413(1)(c) transfers concurrent interests in equal and undivided shares with no right of survivorship unless the deed specifies otherwise. 75-6-413(4) adds that the deed transfers without covenant or warranty of title even if it contains a contrary provision.

• Filing With the County Recorder, and the Fee We Will Not Guess At

  Recording is itself one of the statutory requirements rather than an afterthought: subsection (1)(b)(v) requires that the affidavit be recorded in the office of the recorder of the county in which the affected property is located, and the same formula appears in subsection (2)(d) and in 75-6-413(5). No court is involved on any branch. On cost we are going to be straight with you: neither 57-1-5.1 nor 75-6-413 states a recording fee, we read both in full, and our attempts to reach Utah's county recorder fee schedule failed, so we are not printing a number we cannot stand behind. Call the recorder for the county where the property sits, confirm the fee and ask whether they want anything on a cover sheet. Attorney review is available as an option if the chain of title looks complicated.