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What Is Right of Survivorship and Why is it Important?

Posted on Wed, Apr 05, 2017 @ 07:00 AM

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It’s important to have a firm grasp on the concept of the right of survivorship, especially if your family owns a great deal of property. Simply put, the right of survivorship is the concept referring to a person’s legal right to assume ownership of another person’s property upon his or her death. The right of survivorship supersedes typical probate proceedings, meaning the property in question changes hands far more quickly.

How Does the Right of Survivorship Work?

Whenever a person dies, his or her will dictates how property and assets are to be distributed. Depending on the type of property and assets, how much there is, and who is involved, the distribution process can take months or even years. Property subject to the right of survivorship automatically transfers to the individual with the right of survivorship and clear title. Ensuring clear title can take some time, but it is typically preferable to and far more expedient than the probate process.

To qualify for distribution through right of survivorship, the property in question must have the proper tenancy. Essentially, the property must be held in joint tenancy between the deceased and the recipient, complete tenancy by the recipient, or community property held by the deceased and the recipient. Property such as back accounts, bonds, securities, real estate, vehicles, and investments are just a few of the possibilities.  

How to Transfer Property with a Survivorship Deed

The most attractive aspect of the right of survivorship and survivorship deeds is the fact that property moves to its intended recipient much more quickly than estate distribution through the probate process. If you’re interested in transferring your property rights to another loved one with a survivorship deed, the first step is to prepare joint tenancy. Every survivorship deed hinges on joint tenant agreements.

The first step in establishing a joint tenant agreement is to determine the parties who will join the tenancy. Typically, the joint tenants share equal responsibility and rights to the property in question. While most states assign equal ownership to all parties by default, you can sometimes assign different percentages to each tenant.

Next, determine how to draft your survivorship deed. A survivorship deed can be a warranty deed or a quitclaim deed. Everyone has different variables to consider, so you’ll have to decide what you want to transfer with the deed and which format works best for you. Generally, warranty deeds are more comprehensive and provide more guarantees, but they can take quite a long time to prepare. Most people who prepare joint tenancy agreements create a quitclaim deed because it is more straightforward and easier to prepare.

Once the survivorship deed is complete, the joint tenants should file it with the local courthouse as soon as possible. If you fail to file the deed, it does not necessarily void it, but it can make distribution take longer than it should otherwise. Once you file the deed at the courthouse, the joint tenants essentially only have to maintain ownership of the property.

Distribution of Assets and Property

Survivorship deeds may include more than two joint tenants and property transfers per the deed as each tenant dies. If a deed has multiple tenants, property ownership interest is then split among the surviving tenants. When there is only one tenant left, he or she assumes full ownership of the property and assets listed in the deed.

Joint tenants may not transfer or sell property listed in the survivorship deed until there is only one tenant left. Doing so would be a violation of the right of survivorship. After the other tenants have passed away, the final tenant can then pass the property on to his or her children or other loved ones as he or she sees fit.

Preparing a survivorship deed can be time-consuming, but the payoff is that asset distribution happens in a fraction of the time probate requires. If you’re interested in establishing joint tenancy for a survivorship deed, speak to a reliable estate attorney to get started.

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