How Does Right of Survivorship Work?

Posted by CourthouseDirect.com Team - 21 February, 2018

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rights of survivorshipIf you jointly own a piece of property with one or more parties, you need to know about the legal right of survivorship. Nobody likes to think about what happens if one of the joint owners passes away, but it’s always better to be prepared in the event that this happens. As a joint owner, it’s important to understand the rights you have to the property – if any – should a fellow co-owner die. This is where the right of survivorship comes into play. Here’s what you need to know.

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Definition of “Right to Survivorship”

According to the Legal Dictionary, the “right of survivorship” is the power that a successor(s) of a deceased person has to acquire the property of that person upon his or her death. The right of survivorship decides what happens to a piece of property after one of its owners passes away. Right to survivorship arises in properties with joint tenancy, or properties that two or more parties own together. When one party dies, right to survivorship determines the fate of the piece of real estate. Here are a few facts about right of survivorship:

  • The right of survivorship is a particularly important and powerful legal privilege, as it will take precedence over all other types of claims to a property.
  • The right to survivorship even supersedes probate court, or the legal process of determining a deceased person’s division and ownership of estate.
  • The right of survivorship results in a change in ownership of the property in question much faster than the probate process. While probate can take months or even years, the right to survivorship settles the matter of property ownership automatically.

Right to survivorship is much more expedient than probate in transferring the title to a property’s co-owner. However, the right of survivorship is something you can only have with proper joint tenancy between the two parties. A contract between two or more people that specifies each person’s simultaneous ownership of the same real or personal property is required for the right of survivorship to exist. The joint tenancy needs to be legal and official, preferably with a written contract and other valid documentation. If a proper joint tenancy exists, the right to survivorship exists.

How to Create the Right of Survivorship

To hold a piece of property or real estate in joint tenancy, the official real estate deed or title needs to contain the right words. In most states, you and the other co-owners simply have to write the abbreviation for “joint tenants with the right of survivorship,” or “JTWROS,” on the title after your names. This creates a legally binding joint tenancy with the right of survivorship. Make sure to write this clearly and unambiguously, instead of only writing “and” between your names. In Texas you also have to follow other rules for creating a joint tenancy:

  • In Texas, as in most states, it is only a joint tenancy if all joint owners own equal shares of the property. A different arrangement will not result in proper joint tenancy, and could compromise the right of survivorship.
  • You must to have a written agreement that to create a joint tenancy. Without a written agreement, the co-ownership might not satisfy the requirements of the Texas Supreme Court, and lead to an ownership dispute.
  • Spell out your joint tenancy with right of ownership in your written co-ownership agreement. Simply purchasing a piece of property or signing up for a bank account together does not automatically create joint tenancy. Texas statute is very specific about the language required to create this type of contract.

Once you complete the deed, file it with the local courthouse as soon as possible. When in doubt, set up your joint tenancy through a real estate attorney. A lawyer can help you avoid probate with a proper joint tenancy and right of survivorship. Then you can have peace of mind that in the unfortunate event that a co-owner dies, the Texas courts will enforce your right to ownership of the property or asset.

Excising Your Right of Survivorship

If a co-owner passes away and you have right of survivorship, you typically won’t have to worry about transferring the title over to your name. This is what makes the right of survivorship a much more desirable alternative to probate. You do not need probate to get the title in your name or transfer ownership. However, you will need to file a few documents to make sure the rest of the world knows that you have clear title to the property as the survivor. Here’s what to do to make the transfer of the property known:

  1. File a copy of the co-owner’s death certificate. The first step is establishing to the courts that the co-owner did in fact pass away. You will need to put a document, such as a certified copy of the death certificate, on file in public land records.
  2. File a document stating that you are now the sole owner of the tenancy. Sign and file a statement that explains that you and the deceased co-owner had a joint tenancy, and that now you are the sole owner. You will typically need to sign and/or notarize the statement.
  3. Bring the proof of death and the statement of ownership to the land records office in the county where the property is located. It might be called the “Registrar of Deeds” or the “County Recorder.” You will likely have to pay a small fee ($10 to $15) to file your claim.
  4. For bank accounts: If you jointly own a bank account, you will automatically own all the money in the account. You do not have to go through probate court for the right to the money in your jointly owned account, as long as you had previously established official joint tenancy of the account. Take a certified copy of the death certificate to your bank to switch the account to your name alone.
  5. For other types of property: Contact the company in charge of jointly owned stocks, bonds, and securities. You may need to fill out a form and send it along with the death certificate to register the accounts in your name. Transferring a jointly owned vehicle to your name is also a simple process, through your state’s Department of Motor Vehicles.

Keep in mind that property laws can vary significantly depending on your locality. While the general idea of how to excise your right of survivorship will remain the same, the specific processes can differ. Seek help from a professional if you’re unsure of whether or not your survivor’s rights are clear, intact, and legal after the death of a co-owner in a joint tenancy. A lawyer can answer any other questions you may have about the right of survivorship.

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