The right of survivorship is a legal concept that applies to joint ownership of property, typically real estate or financial accounts, between two or more people.
When a property is held with the right of survivorship, if one of the joint owners dies, their share in the property automatically passes to the surviving owner(s) without going through the probate process. This means that the surviving owner(s) gain full ownership of the property without the need for any legal intervention.
A right of survivorship deed, also known as a joint tenancy with rights of survivorship deed, is a legal document that establishes joint ownership of a property with the right of survivorship. By using this type of deed, the co-owners (also called joint tenants) agree that upon the death of one owner, their interest in the property will automatically transfer to the surviving owner(s).
This type of deed is commonly used by married couples, family members, or close friends who wish to own property together and ensure a seamless transfer of ownership in the event of one owner’s death.
The right of survivorship may have tax implications, and it can be affected by state laws, so it is best to speak with a legal professional to understand the full implications of creating a right of survivorship deed.
What Forms of Title Have the Right of Survivorship?
Several forms of title include the right of survivorship. These forms of ownership ensure that the property is transferred to the surviving owner(s) upon the death of one of the joint owners without going through the probate process. The two most common forms of title with the right of survivorship are joint tenancy and tenancy by the entirety.
Joint tenancy is a form of ownership in which two or more people hold equal shares of a property with the right of survivorship. In this form of title, each owner has an undivided interest in the property, and all joint tenants must acquire their interest at the same time and through the same document. If one of the joint tenants dies, their share in the property automatically passes to the surviving joint tenant(s), irrespective of any will or testamentary provisions.
Joint tenancy can be used by any group of people, including friends, relatives, or business partners, and is not limited to married couples. However, joint tenancy may be severed or converted into another form of ownership (such as a tenancy in common) if one of the joint tenants transfers their interest in the property to a third party.
Tenancy by the entirety is a form of ownership available only to married couples or, in some states, to registered domestic partners. Like joint tenancy, tenancy by the entirety includes the right of survivorship, ensuring that if one spouse dies, their share in the property automatically passes to the surviving spouse without going through probate.
In addition to the right of survivorship, tenancy by the entirety provides further protection to the couple by requiring the consent of both spouses to transfer, mortgage, or otherwise encumber the property. This form of ownership can help protect the property from the individual debts of one spouse, as creditors usually cannot seize the property unless both spouses are indebted.
Not all states recognize tenancy by the entirety, and the availability of this form of ownership may vary depending on the jurisdiction.
What Are Some Examples of the Right of Survivorship?
Here are a few examples to illustrate how the right of survivorship works in practice:
Real Estate
John and Jane are a married couple and own their home as joint tenants with rights of survivorship. If John passes away, his share of the property will automatically transfer to Jane, making her the sole owner of the property without going through the probate process. The property transfer happens immediately upon John’s death, and Jane does not need to take any additional legal action.
Bank Accounts
Mark and Mary, a married couple, have a joint bank account with rights of survivorship. If Mark passes away, the entire balance of the account will automatically become Mary’s property without any need for probate. Mary would simply need to provide the bank with a copy of Mark’s death certificate to have the account retitled in her name alone.
Investment Accounts
Carlos and Linda, a brother and sister, own an investment account as joint tenants with rights of survivorship. If Carlos passes away, the entire account balance will automatically be transferred to Linda, bypassing the probate process. Linda would need to provide the investment firm with a copy of Carlos’s death certificate and complete any required paperwork to have the account retitled in her name alone.
Vehicle Ownership
Paul and Susan are friends who own a car together as joint tenants with rights of survivorship. If Paul passes away, Susan will automatically become the sole owner of the car without going through the probate process. Susan would need to provide the Department of Motor Vehicles with a copy of Paul’s death certificate and complete any necessary paperwork to transfer the vehicle title to her name alone.
These examples demonstrate how the right of survivorship allows for the seamless transfer of jointly-owned property or assets to the surviving owner(s) upon the death of one owner without probate proceedings. This feature can simplify estate planning and provide peace of mind to the parties involved.
How Do I Claim the Right of Survivorship?
Here are some ways in which the right of survivorship can be claimed and enforced:
- Proving ownership: To claim the right of survivorship, the surviving joint owner must prove that they were indeed a joint owner of the property in question by producing documentation such as deeds, titles, or account statements.
- Notifying relevant parties: Once the right of survivorship is claimed, the surviving joint owner must notify any relevant parties, such as banks or financial institutions, to ensure that they have the legal right to access and manage the joint property.
- Seeking legal assistance: If there are any disputes or disagreements regarding the right of survivorship, it may be necessary to seek the assistance of a lawyer to help resolve the issue.
Can the Right of Survivorship Be Terminated or Extinguished?
There are a few circumstances where the termination or extinguishment of the right of survivorship can happen:
- Transfer of ownership: If the joint owners decide to transfer the property to a third party, the right of survivorship will be terminated.
- Divorce or dissolution of partnership: If the joint owners are spouses or business partners, the right of survivorship will be terminated upon divorce or dissolution of the partnership.
- Agreement between joint owners: If the joint owners agree to terminate the right of survivorship, they can sign a written agreement.
Can the Right of Survivorship Be Challenged or Contested?
The right of survivorship can be challenged or contested under certain circumstances. Some common reasons for challenging the right of survivorship include fraud, duress, undue influence, or lack of capacity.
To challenge the right of survivorship, the party contesting the right must file a lawsuit and prove their case in court with the help of a lawyer.
Do I Need a Lawyer for Issues with the Right of Survivorship?
If you are facing issues related to the right of survivorship, seek the assistance of a qualified real estate lawyer.
A real estate lawyer can help you navigate the legal complexities surrounding this issue, provide professional advice, and represent you in court. They can help you determine whether you have a valid claim to the right of survivorship, explain your legal options, and ensure that your rights are protected throughout the process.
Real estate lawyers are experienced in dealing with a wide range of issues related to property ownership, including disputes over the right of survivorship. They can help you resolve any conflicts that arise and work to protect your interests. So, if you are facing any issues related to the right of survivorship, contact a property lawyer to discuss your case and learn more about how they can help you.
