Title Standard Spotlight
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2006, Volume 5, Number 1
Title Standard Spotlight
REBA Title Standard No. 71: Evidence of Death of Deceased Joint Owners and Life Tenants
by Ward P. Graham, New England Division Counsel
We've all had the situation arise in which title to the real estate with which we are concerned is derived from a survivorship tenancy (joint tenancy, tenancy by the entirety or a life estate) where one of the tenants has apparently died but there is no death certificate filed at the Registry of Deeds. While the Real Estate Bar Association (in its former guise as the Massachusetts Conveyancers Association) adopted Practice Standard No. 10 (Conveyances After Death: Recording of Documents) in 1984 requiring that death certificates be recorded in every instance in which title derives from a deceased “joint owner,” unfortunately, not all conveyancers or estate attorneys have followed the practice standard over the years so we still run into missing death certificate situations with annoying frequency.
In order to cure such a situation, the first approach, of course, is to obtain and record a death certificate for the deceased tenant. However, it is becoming more and more difficult to obtain death certificates because of bureaucratic restrictions and inefficiencies, privacy concerns taken to the extreme and the mobility of our society contributing to increasing numbers of persons owning real estate in Massachusetts but dying in other states or countries. It is not uncommon for there to be nothing on record to tell us in what jurisdiction the decedent died and, even if we can figure it out, it is frequently a difficult if not monumental task to obtain the death certificate, especially if the death occurred in a foreign country.
Fortunately, in some cases, there is other evidence of the death of the deceased tenant on record or otherwise available to be put on record. The most common one is the recital of the person’s death in the deed from the survivor or an heir, devisee or fiduciary of the survivor. There also may be a domestic or foreign probate for the deceased tenant that was required because of other assets of the decedent. There may also be inheritance or estate tax releases recorded for the decedent’s interest in the property. These forms of evidence, under certain circumstances, should be sufficient to establish the death of the tenant with whom we are concerned but neither the practice standard nor any title standard had accommodated for these alternative forms of evidence of death until the adoption of REBA Title Standard No. 71 at the recent REBA Annual Meeting on November 14, 2005.
REBA Title Standard No. 71: Evidence of Death of Deceased Joint Owners and Life Tenants
Consistent with 21-year-old Practice Standard No. 10, Title Standard No. 71 begins with providing that:
A title derived from surviving joint owner(s), or from remainderpersons after the death of life tenant(s) or from an executor, administrator, guardian, conservator, heir(s) or devisee(s) of such survivor(s) or remainderperson(s) (collectively, “Survivors”), is not defective by reason of any uncertainty as to the death of the deceased joint owner or life tenant if evidence of the death is established by:
(a) a death certificate recorded at the Registry of Deeds in the district where the property is located or a death certificate filed with or noted in the docket of a probate or other proceeding in the Probate Court in the county where the real property is located.
Note that the title standard not only provides for the recording at the Registry of Deeds of a death certificate, but expands upon Practice Standard No. 10 by authorizing reliance on a death certificate filed in a local probate or other proceeding (if there is one) relative to the decedent in question. It also allows for reliance if the filing of the death certificate is noted in the docket of the proceeding even if the actual death certificate cannot be found in the file. This is based on the dual recognition that, generally, no probate since 1987 should be allowed without a certified copy of a death certificate accompanying the petition and that, for certain probate courts (some more notorious than others), it is not uncommon to be unable to locate entire files let alone certain documents that should be in the files.
Reliance on Documents other than Death Certificates
The next portion of new Title Standard No. 71 provides for reliance on documents which were deemed by the Title Standards Committee, the Board of REBA and the voting membership to be sufficiently reliable evidence of death, either inherently or by passage of time, to provide a suitable substitute for a death certificate. That portion of the title standard provides for reliance upon
(b) the recording at the Registry of Deeds in the district where the property is located of
(1) a certified copy of an allowed petition for a domestic or foreign probate or administration of the decedent’s estate, or a certificate of appointment in such matter, which in either case recites the decedent’s date of death, provided that recording of such petition in the Registry of Deeds shall not be necessary if such petition is filed in the same county where the property is located; or
(2) a Massachusetts Inheritance Tax Lien Release (“L-8”) relative to the decedent’s interest in the property; or
(3) a Massachusetts Certificate of Release of Estate Tax Lien (“M-792”) relative to the decedent’s interest in the property, provided, however, that the M-792 has been recorded for more than 20 years; or
(4) a deed for the real property from such Survivors that contains a recital that the decedent has died, even if no date or place of death is recited, provided, however, that such deed has been recorded for more than 20 years.
As to sub-paragraph (b) (1), reliance upon allowed probate petitions (or the equivalent in other jurisdictions, whatever they may be called) not only if (as with paragraph (a)) a death certificate cannot be found in the file but also if, in the case of a domestic probate prior to 1987 or a foreign probate, there is no death certificate filed or noted in the docket.
Sub-paragraph (b) (2) allows for reliance on the old form L-8 Inheritance Tax Releases from DOR, which, like the modern Estate Tax Release form M-792s, recited a date of death for the decedent. However, as the Inheritance Tax system was abolished as of January 1, 1976, with the transition in Massachusetts to the Estate Tax system, pretty much all L-8s will have been of record for well more than 20 years and most will be of record for more than 30 years. Although there is a residual possibility of an inheritance tax being imposed after January 1, 1976, on a future interest derived from a pre-1976 decedent, it is so rare that it was deemed unnecessary to even address that situation in the title standard.
As for the much more familiar M-792 addressed in sub-paragraph (3), while it also recites the date of death of the decedent, it was not deemed to be sufficiently reliable in and of itself unless of record for a sufficient period of time so as to negate any likelihood of it being used as a fraud device. Of concern in that regard was the discovery upon researching the Massachusetts Estate Tax Instructions booklet and the Estate Tax Regulations as well as contacting the Estate Tax Bureau, that a death certificate does not need to be filed with an Estate Tax Return, although, as a practical matter, many people do file one. Consequently, it was felt that an appreciable period of time should elapse before an M-792 could be relied upon as sufficient evidence of death without more. Consistent with reliance on the recital in a deed, to be discussed next, and the classic statute of limitations for real property actions, 20 years was chosen.
It is also quite common to encounter older deeds in a chain of title in which there is a recital of the death of a former tenant by the entirety (probably the most common), joint owner or life tenant. In many instances, the date of death is omitted and it is rare that a place of death is recited. Because Practice Standard No. 10 has been in place for some 21 years now, it has been at least less frequent that we have seen deeds recorded without any other evidence of the death of the decedent, although it does still happen more than it should and, hence, the need for the title standard. Consequently, the majority of the deeds falling into that category were recorded before Practice Standard No. 10 was adopted. Again, consistent with the 20-year statute of limitations involving real estate matters (the common exceptions to such statute of limitations notwithstanding), a deed reciting the former tenant’s death, even if without a mention of the date or place of the death, was deemed sufficiently reliable without any further evidence if the deed containing the recital has been of record for more than 20 years. While not specifically stated in the title standard, this assumes, of course, that the chain of title for the subject real estate doesn’t reveal any notices of Lis Pendens or other notices of actions or challenges to the honesty or accuracy of the recital.
Title Standard Comments and Caveats
As with most title standards, there are a couple of clarifying comments and cautionary caveats. The first comment refers to REBA Practice Standard No. 10 to emphasize that, notwithstanding the title standard, it is still the proper practice to record a death certificate for deceased joint owners and life tenants, unless, of course, there is a probate for that person in the same district where the property is located. The second comment clarifies that the term “joint owners” as used in the title standard includes both joint tenants and tenants by the entirety.
As for the caveats, it is always important to keep in mind that it may not be the case that the Land Court or its Registry Districts will follow a REBA title standard. In this case, the issue of filing a death certificate for a deceased joint owner or life tenant of registered land will be governed, at least for the time being, by the more restrictive requirements of Land Court Guideline No. 14 (May 1, 2000). The Land Court guidelines are currently undergoing revision, so it will be necessary to review the final revision when it is promulgated to see if the guideline regarding this issue is loosened up to any degree.
The second caveat points out that which may be obvious but sometimes the obvious needs to be said nonetheless. In this case, the obvious is that, “[w]hile M-792s or L-8s are considered sufficiently reliable evidence of death under the circumstances discussed in [the] title standard, an Estate Tax Affidavit pursuant to G.L.c. 65C, § 14(a) is not.” We heartily thank the DOR and the legislature for allowing us to rely on what is usually a quite self-serving affidavit for relieving real estate purchased by a good faith purchaser from the estate tax lien, but such an affidavit is much too easy a tool to commit fraud if we were to rely on it as evidence of death without any of the documents referred to in the title standard to back it up.
As with many title standards, Title Standard No. 71 may not address all the possible forms of evidence of death you may find of record in examining a title involving a deceased joint owner or life tenant, but it will provide guidance with respect to the forms of evidence you are more likely to find if a death certificate is not recorded or reasonably available to obtain and record. If you do run into a situation not precisely covered by the title standard, as always, please do not hesitate to call one of your Stewart Title underwriters to discuss your situation.
1 Practice Standard No. 10 deals with recording of documents in support of several common situations involving the conveyance of property after the death of a title holder, one or more of which every conveyancer is likely to see fairly regularly. [Back to Text]
2 See G.L.c. 192, §1, as amended by St. 1987, c. 99, approved June 1, 1987. [Back to Text]
3 The title standard passed unanimously at the annual meeting. [Back to Text]
4 See 830 CMR 65C.1.1 (5) (b), et seq. [Back to Text]