Probates & Death Certificates
Presented by Kay M. Creasman, Counsel
Q: If a will has been probated do we still need a copy of the death certificate?
Answer: It depends.
Comments: Prior to the Fall Live Seminars we presented, the response would have been “no,” the Clerk’s probate office is satisfied they are deceased. Traveling around Virginia we found that some localities record a list of heirs, a real estate affidavit or a will without a copy of the death certificate. We know there’s not a statute that requires the Clerk’s office to see a death certificate, but we erroneously assumed one would be used prior to recordation of documents that would transfer title to real estate.
As title professionals, we need evidence the owner is deceased. What type of evidence is needed? A death certificate, a copy of an obituary, a church bulletin, notice on Ancestry.com, a copy of the gravestone, etc. The more recent the death, the more likely we need independent evidence of the owner passing away. If the property has been transferred out of the family, i.e., it’s more than one link back to the decedent, a copy of an existing owner’s policy with no exception related to the death of the prior owner plus using general warranty deed in the transaction you are insuring so the existing owner’s policy providing coverage would be sufficient.
In cases where we are insuring the current sale from the heirs in an intestate situation, we need affidavits of family relationship from someone who can be a family member but cannot be someone inheriting, or the spouse of someone inheriting or the descendent of someone inheriting. Obtaining this can be challenging but is necessary to reduce the risk of convenient memories or total misunderstanding of who owns real estate when someone has died.