In Pennsylvania, title to land commonly passes by deed, death, or divorce—collectively also known as the three “Ds” of Pennsylvania title transition. When an individual landowner in the Commonwealth dies, Pennsylvania statute dictates that legal title to the decedent’s solely held real property pass to the decedent’s devisees or heirs at law upon death, subject to powers given to the decedent’s personal representative by will, statute, or court order. (i.e. powers to sell the decedent’s real property). Such a landowner can die either with or without a valid last will and testament in effect (a “will”). If the landowner dies with a will in effect, legal title passes to the landowner’s devisees (a devisee is a beneficiary who receives a gift of real property under the will). If the landowner dies without a will in effect, legal title passes to the landowner’s heirs at law (heirs at law are statutory beneficiaries, such as spouses, children, parents, siblings, etc.). This Post on Pennsylvania Real Property Title (1) briefly analyzes the general flow of title when a landowner dies with or without a will in effect, and (2) generally looks at title transition when land is co-owned by spouses or multiple related/unrelated landowners.
The will is a legally enforceable document written by a testator that expressly states who gets the testator’s property when the testator dies (a testator is anyone who has a will). Upon the testator’s death, her will becomes the controlling title document as to the testator’s real property interests. If a testator dies owning real property in the testator’s sole name, her will must be offered for probate at a local county register of wills office. At the register of wills office, the nominated executer under the testator’s will is sworn in as executor of the testator’s estate, and that appointed executor is then legally charged with administering the testator’s estate. At the beneficiary distribution stage of estate administration, the estate’s appointed executor grants and delivers a deed(s) for real property to the testator’s devisee(s) under the will. However, pending the testator’s intent and the circumstances of the estate, the executor may be directed instead to sell the testator’s real property on behalf of the beneficiaries (i.e. the executor holds title in trust for the beneficieries). Although the executor’s deed is the recorded document that formally illustrates a transfer of title to real property, legal title actually passes at the moment of the testator’s death. Under testate succession, “will + death” is the singular legal linkage in the chain of title for land.
Conversely, when a landowner dies without a will, that landowner dies intestate, and Pennsylvania laws of intestacy are invoked to direct the succession of that landowner’s real and personal property. Upon intestate death, title to the decedent’s real property flows to the decedent’s heirs at law, typically being the decedent’s surviving spouse, children, parents, siblings, grandparents, nephews, or nieces. At the beneficiary distribution stage of estate administration, the estate’s appointed administrator grants and delivers a deed(s) for real property to the decedent’s heirs at law (an administrator is appointed to administer an intestate estate just as an executor is appointed to administer a testate estate). However, pending the circumstances of the estate, the administrator (holding title in trust) may be obligated to sell the decedent’s real property for the benefit of the estate and/or heirs. The administrator’s deed mimics the legal operation of an executor’s deed—the administrator’s deed illustrates transfer of title, but legal title to real property passes at the moment of the decedent’s death. Under intestate succession, death alone is the legal link in the chain of title for land.
Wills aside, real property can be co-owned by multiple people or entities in three different ways: (1) tenancy by the entireties (TBTE), (2) joint tenancy with rights of survivorship (JTWROS), or (3) tenancy in common (TIC). First, when two married landowners jointly hold title to land as spouses, they co-own the land as a TBTE, whereby upon the death of one spouse, full title to jointly held land automatically vests in the surviving spouse. Second, if unmarried co-landowners jointly hold title to land as a JTWROS, and one landowner in the joint tenancy subsequently dies, that deceased landowner’s interest share passes in equal parts to the surviving co-landowners, being the surviving joint tenants. Third, with no rights of survivorship, if co-landowners hold title to land as a TIC, and one landowner in the TIC dies, that deceased landowner’s interest passes directly to her devisees or heirs at law.
Regarding TBTE, if the last recorded deed in the chain of title shows that a decedent owned land jointly with her spouse, full title to that land vested in the surviving spouse at the moment of the decedent’s death. When two individuals are married, they form a TBTE, whereby each spouse owns an undivided equal share of marital property with a right of survivorship as to the other spouse’s share. For example, if Joe and Jane, husband and wife, jointly own the entire oil & gas estate under a 200-acre farmland tract, and Joe dies, full legal title to the oil & gas fully vests in Jane by operation of Joe’s death. Simply put, the death of one spouse is the legal link in the chain of title when two spouses are record landowners as TBTE.
Death is also the legal link in the chain of title when unmarried persons co-own property. Unmarried landowners can jointly hold title to real property in two different ways: JTWROS or TIC. In a JTWROS, when one joint tenant dies, that deceased joint tenant’s share of ownership passes in equal parts to the surviving joint tenants. For example, say three sisters (Judy, Jane, and Janet) hold legal title as JTWROS to all of the natural gas under a 600-acre forest reserve tract. Under these circumstances, if Judy dies, Judy’s (1/3) ownership share passes in two equal parts, with one-half of Judy’s (1/3) share going to Jane, and the other one-half of Judy’s (1/3) share going to Janet. After Judy’s death, full title vests equally in Jane and Janet, whereby Jane and Janet own the natural gas in two equal 50% shares as JTWROS. If Jane subsequently dies, full title to the natural gas estate vests in Janet 100% as the sole owner.
Contrast a JTWROS with a TIC. If Judy, Jane, and Janet hold title to the 600-acre natural gas estate in three equal shares as a TIC, and Judy dies, Judy’s (1/3) interest share passes directly to Judy’s devisees named in her will; or, if she died without a will, Judy’s (1/3) interest share passes directly to Judy’s heirs at law. Under these circumstances, Jane and Janet’s ownership shares are not affected by Judy’s death (unless Jane and/or Janet are Judy’s devisees or heirs at law). After Judy’s death, Jane retains her (1/3) interest share, Janet retains her (1/3) interest share, and Judy’s devisees or heirs at law own Judy’s (1/3) interest share. The bottom line with co-owned land is straightforward: there are rights of survivorship in a TBTE and JTWROS, but there are no rights of survivorship in a TIC.
THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE. This blog post is written and published for informational and educational purposes only and is not intended to constitute legal advice. Every client’s case is different, and a general synopsis of an area of law can be neither complete in its scope, nor specifically tailored to the unique facts of an individual’s case. If you need legal advice, you should contact an attorney regarding your specific factual and legal circumstances.