Wyoming Affidavit of Survivorship

Introduction

Key Things to Know

1. 1

   W.S. 2-9-102 lets any person interested in the affected property or the title thereto make a death a matter of record. Nothing is conveyed. A surviving joint tenant or surviving tenant by the entireties already held the whole interest from the moment of death, under the vesting instrument; recording simply makes the land records say so.

2. 2

   Venue is the office of the county clerk of the county in which the property is situate, in the statute's own words, across Wyoming's 23 counties. Sent to a register of deeds? Ask for the county clerk: W.S. 18-3-402(a)(xxii) has one official perform duties as county clerk and register of deeds.

3. 3

   A certified copy of the official death certificate is a mandatory exhibit under W.S. 2-9-102, and the certification must come from the public authority holding the original. Order several certified copies; your county clerk keeps the one recorded. Wyoming never lets that certificate stand alone in place of the sworn filing.

4. 4

   Three contents are statutory. A description of the property. The instrument under which the estate was vested, with appropriate references to its recording data if the instrument was recorded, so give book and page or document number. And certifying under oath to the death of the decedent as the party who was named in and whose death terminated his previous estate. W.S. 34-11-101(c) adds one more: name the person appearing by the record to be the owner, since your county clerk indexes under that name.

5. 5

   W.S. 2-9-103 grades the result generously, on substantial rather than strict compliance, and the weight it confers covers every fact recited, not merely the death. That same section labels the procedure permissive and nonjudicial, independent of the judicial route at W.S. 2-9-101, so picking one forfeits nothing.

6. 6

   Swearing is mandatory; a notarial shortcut is spelled out. W.S. 34-11-101(a), in Wyoming's chapter on affidavits affecting title: a certificate of acknowledgement shall not be required on an affidavit containing a jurat in order to be recorded. A jurat suffices. Conveyances of land answer to W.S. 34-1-113 instead, which demands acknowledgment before a notarial officer.

7. 7

   Wyoming gives this subject a whole chapter, and W.S. 34-11-101(b) lists its permitted subjects expressly: death, possession, occupancy, residence, service in the armed forces, conflicts and ambiguities in descriptions of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest. That last catch-all is what reaches a terminating life estate or joint tenancy.

Wyoming Requirements for Affidavit of Death

• A Description of the Property

  The first of the three contents W.S. 2-9-102 names. Transcribe the legal description character for character from the recorded vesting instrument rather than describing the property from memory, and add the street address. Keep the description count in mind at the counter: W.S. 18-3-402(a)(xvi)(N) adds $1.00 for each section, block, lot or tract description beyond ten, and (R) adds $2.00 for each additional description where the instrument gives more than two real estate descriptions by book and page only.

• The Vesting Instrument, With Its Recording Data If It Was Recorded

  The second content item, and the one people arrive without. W.S. 2-9-102 asks for the instrument under which the estate was vested, with appropriate references to its recording data if the instrument was recorded, so give the deed type, its date, and its book and page or document number in the county clerk's records. Note the conditional: Wyoming does not demand recording data for a vesting instrument that was never recorded. Pull that deed before drafting anything, because its exact words are what created the joint tenancy, the estate by entireties or the life estate, and they decide whether this is your route at all.

• A Certification Under Oath That the Named Person Died

  The third content item, and W.S. 2-9-102 words it narrowly: a certification under oath to the death of the decedent as the party who was named in and whose death terminated his previous estate in the property under the vesting instrument. Two facts are being sworn, not one. That the person died, and that the person who died is the same person the vesting instrument names. Give the full legal name as the death certificate spells it, plus the name exactly as the deed spells it where the two differ, and state that they are the same person.

• A Certified Copy of the Official Death Certificate, Attached

  The one mandatory attachment, and W.S. 2-9-102 makes it part of the instrument: the affidavit shall have attached thereto a copy of the official death certificate of the decedent, certified to by the public authority in which the original death certificate is a matter of record. The certification has to come from the authority holding the original, so a photocopy of your own copy is not what the section asks for. The certificate never replaces the affidavit in Wyoming; it rides along with it. Order several certified copies at the outset, because the county clerk keeps the one you record.

• The Record Owner's Name, Spelled As the Record Spells It

  W.S. 34-11-101(c) requires an affidavit recorded under the generic affidavits-affecting-title chapter to state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit, and the same subsection directs the county clerk to index the affidavit in the name of the record owner and in the same manner as deeds are recorded. That is why the spelling matters: the index entry is the key a future title search runs on. W.S. 2-9-102 does not itself list this element, so treat it as the belt-and-braces drafting choice it is. Note also the fee effect: W.S. 18-3-402(a)(xvi)(M) adds $1.00 per additional name once an instrument carries more than five grantors or grantees of a different surname.

• A Jurat, Which Is Enough Without a Certificate of Acknowledgment

  The oath is mandatory. W.S. 2-9-102 requires the affiant to be certifying under oath, and W.S. 2-9-103 gives its evidentiary effect only to an affidavit signed, sworn to and recorded. What Wyoming adds, and most states leave unsaid, is the express alternative in W.S. 34-11-101(a): a certificate of acknowledgement shall not be required on an affidavit containing a jurat in order to be recorded. So swear it before a notarial officer and let the jurat stand; no separate acknowledgment certificate is additionally needed. That differs from the general rule for deeds in the same statutes, W.S. 34-1-113, which requires conveyances of land to be acknowledged before a notarial officer. No attesting witnesses are required by either affidavit section.

• The Right County Clerk, the Signed Original, and $12.00 for the First Page

  W.S. 2-9-102 names the office: the county clerk of the county in which the property is situate, across Wyoming's 23 counties. Ask for the county clerk even if you were sent to a register of deeds, because W.S. 18-3-402(a)(xxii) makes that one official. Bring the signed original, not a copy: W.S. 34-1-119(a) allows only instruments which are the originally signed documents, or properly certified or authenticated copies thereof, to be properly recorded, which is also why the attached death certificate has to be a certified copy. Wyoming fixes the fee by statute rather than county by county, at $12.00 for the first page and $3.00 for each additional page under W.S. 18-3-402(a)(xvi)(A), and W.S. 18-3-402(a)(x)(D) provides that no county clerk shall perform any of these duties unless any required fee has been paid.

• The Separate, Exclusive Route if the Property Came Through a Transfer on Death Deed

  Different route, and the statute closes the alternatives. W.S. 2-18-103(n) provides that proof of the death of the owner or a grantee beneficiary and transfer of ownership of the property by operation of law shall be established exclusively by recording an affidavit as provided under W.S. 34-11-101 and an accompanying certificate of clearance, both in the office of the county clerk of the county in which the real property is situated. The affidavit shall identify the transfer on death deed by deed book and page or document number, so pull the recorded deed first. The certificate of clearance shall be issued by the Wyoming department of health and shall certify that all medical assistance claims have either been satisfied or do not exist. Begin on it early, since a state agency is on the path. Check which route you are on before drafting: under W.S. 2-18-103(d) the rights of a surviving joint tenant with right of survivorship prevail over a grantee beneficiary named in a transfer on death deed. One deadline worth knowing on this branch, W.S. 2-18-103(o): insurance in force at the death of the last titled owner extends to the grantee beneficiary for up to sixty days.