When there are two names on a survivorship deed and one person dies, it means ownership of the property will transfer automatically to the surviving co-owner upon the first co-owner’s death through the right of survivorship, entirely bypassing the probate process.
Suppose you are inheriting a house with siblings. Rather than selling it and dividing the proceeds, you decide to hold title as joint tenants with a right of survivorship. Years later, after your sibling passes away, a dispute arises because your deceased sibling left their share of the property to their adult child in their will. You’re worried your deceased sibling’s will could prevail over the right of survivorship designation on the property deed.
Chances are that you don’t have anything to worry about. In this scenario, the survivorship deed would likely prevail. When property is held in joint tenancy with a right of survivorship, the surviving co-owners automatically inherit the deceased owner’s share without the property passing through probate. As a result, the deceased sibling’s will would generally have no effect on how the property is distributed.
However, if evidence were to come to light that calls the validity of the survivorship deed into question, a legal challenge could emerge. Suppose the deceased sibling was suffering from advanced dementia (i.e., he lacked capacity) when he signed the deed. If there is evidence to support this claim, the survivorship deed could be challenged and potentially invalidated. Should this happen, not only would the joint tenancy be severed, but the deceased sibling’s share would pass to their estate, where it would be distributed according to their will — in this case, to their adult child.
While the right of survivorship may seem straightforward, disputes and other legal complexities often complicate its enforcement. Understanding how the right of survivorship works, its limitations and the legal grounds on which it can be challenged can help you better protect your inheritance rights and navigate potential conflicts. A property dispute attorney can be consulted if you have questions.
What Is a Right of Survivorship?
The right of survivorship is a legal designation that can be added to certain deeds and financial accounts to ensure jointly owned property automatically transfers to the surviving co-owner(s) upon a co-owner’s death without needing to pass through probate.
A right of survivorship can not only expedite the transfer of property, but it can eliminate the financial and legal burdens commonly associated with the probate process.
Given that probate can take upward of a year — and estate property generally cannot be distributed to beneficiaries until probate is complete — waiting for property to be distributed through probate could create financial strain for surviving co-owners who rely on the property for housing or income. By avoiding probate, the right of survivorship facilitates a smoother and more immediate transfer of ownership, making it an appealing option for many.
What Is a Survivorship Deed?
A survivorship deed is a legal document that transfers ownership of real estate from one party (called the grantor) to another party (called the grantee) while establishing the right of survivorship. The right of survivorship ensures that when a co-owner passes away, their share of the property will automatically transfer to the surviving co-owner(s) without the need for probate.
Examples of survivorship deeds include joint tenancy deeds and deeds held as community property with a right of survivorship.
What Is a Joint Tenancy With Right of Survivorship?
Joint tenancy with right of survivorship is a form of property ownership in which each co-owner holds an equal, undivided interest in a property. Upon the death of one co-owner, their share of the property automatically transfers to the surviving co-owner(s), bypassing the probate process.
While there are many advantages to joint tenancy, one important consideration is that a co-owner holding property as a joint tenant has the right to sell or transfer their share of the property during their lifetime. If this occurs, the joint tenancy is severed, and the property is converted to tenancy in common.
With tenancy in common, each co-owner holds a separate, transferable share of a property, meaning that probate cannot be bypassed unless the co-owner’s fractional interest were to be transferred to a trust.
What Is Community Property With Right of Survivorship?
Community property with right of survivorship is a form of property ownership specifically available to married couples and registered domestic partners. It allows them to equally share ownership of a property during their lifetimes. Upon the death of one spouse or partner, their interest in the property automatically transfers to the surviving spouse or partner.
One of the primary advantages of community property with right of survivorship is that the surviving spouse or partner can maintain continuity of ownership, potentially allowing their lifestyle to remain unaffected. However, a key drawback is that the deceased spouse or partner cannot leave their share of the property to anyone, as it automatically passes to the surviving spouse or partner.
If the right of survivorship is not expressly included in a property deed that was created during a marriage or registered domestic partnership, the property is generally presumed to be community property. This means that each spouse or partner owns 50% of the property, which can be distributed according to their individual estate planning documents or, if none exist, intestate succession laws.
What Is a Joint Account?
A joint account is a financial account that is equally owned. When an account holder dies, the surviving account holder(s) automatically gain full ownership and control of the contents of the account. In this way, its implications are no different from survivorship deeds.
Joint accounts, just like survivorship deeds, allow for the seamless transfer of ownership without the need for probate.
Can Rights of Survivorship Be Challenged?
Challenging rights of survivorship is possible, but the circumstances under which they can be challenged are limited. To successfully challenge a right of survivorship, you must prove that the survivorship arrangement is invalid.
Grounds for challenging a right of survivorship include:
- Undue Influence: Someone had exerted excessive pressure on the deceased co-owner to coerce them into establishing the right of survivorship.
- Fraud: Someone had intentionally deceived or misled the deceased co-owner into establishing the right of survivorship for personal gain.
- Lack of Capacity: The deceased co-owner had lacked the necessary mental competence to establish the right of survivorship.
- Forgery: Someone had falsified the deceased co-owner’s signature or unlawfully copied a document to establish the right of survivorship.
- Improper Execution: The deceased co-owner had not followed the proper protocol to establish the right of survivorship.
- Mistake: The deceased co-owner had established the right of survivorship by mistake.
- Revocation: The deceased co-owner had previously revoked the document establishing the right of survivorship.
If you believe there are valid grounds for challenging a survivorship deed or joint account, it’s essential to consult with an experienced attorney as soon as possible. Keep in mind that strong evidence is usually required to support your claim. Without strong evidence, it’s unlikely the right of survivorship can be invalidated.
Keep in mind that recovering property that has already been transferred to the surviving co-owner(s) through a right of survivorship can sometimes be difficult — particularly if the co-owners already sold or transferred the property to another party. While this shouldn’t deter you from pursuing legal action if you suspect an issue with the right of survivorship, it’s important to work with a knowledgeable attorney who can help navigate the legal complexities of the process.
Can Joint Tenancy With Right of Survivorship Be Challenged?
Challenging a joint tenancy with right of survivorship is possible if there is evidence to suggest the joint tenancy deed is invalid.
A joint tenancy deed may be deemed invalid if undue influence, fraud, capacity issues, forgery, improper execution or a mistake was involved in its creation or signing. The deed may also be deemed invalid if it had previously been revoked.
Can Community Property With Right of Survivorship Be Challenged?
It is possible to challenge community property with a right of survivorship if there is evidence suggesting the deed that established the right of survivorship is invalid.
A deed establishing the right of survivorship for community property may be deemed invalid if it was created or signed as a result of undue influence, fraud, lack of capacity, forgery, improper execution or a mistake. Additionally, the deed may be considered invalid if it had previously been revoked.
It’s important to note that for title to property to be held as community property with a right of survivorship, the deed must specifically include right of survivorship language. If such language is absent, the right of survivorship may be invalid, as it was never properly established.
Can a Right of Survivorship Bank Account Be Challenged?
If a deceased person’s bank account was jointly owned with a right of survivorship, it may be possible to challenge the account, provided valid grounds exist.
Valid grounds for challenging a right of survivorship bank account include undue influence, fraud, capacity issues, forgery, improper execution and mistakes. Additionally, the account may be challenged if the right of survivorship had been revoked prior to the account holder’s death.
While the right of survivorship is typically assumed for any jointly owned bank account, it’s important to double-check that right of survivorship language is explicitly stated in the account agreement if you wish for the contents of the account to automatically transfer to the surviving joint account holder(s) upon an account holder’s death.
Does a Right of Survivorship Avoid Probate?
In most cases, a deed or joint account with a right of survivorship avoids probate. In fact, the primary reason many people establish a right of survivorship is to bypass the probate process.
When the Right of Survivorship May Not Avoid Probate
Although it is rare, certain situations can arise in which the right of survivorship could become subject to probate proceedings. We’ll explore what these situations are in the sections that follow.
Disputes Over Validity of Survivorship Rights
As discussed earlier, if the right of survivorship included on a deed or joint account is successfully challenged due to misconduct, capacity issues, improper execution or other problems, it could be invalidated.
If a right of survivorship is invalidated, ownership will revert to tenancy in common or, if the entire survivorship deed is invalidated, to the way title was held under a prior valid deed.
Ambiguities or Errors in Survivorship Language
For the right of survivorship to be effective, it must be clearly stated in a deed or account agreement. Improperly worded, ambiguous or nonexistent right of survivorship language can result in the deceased co-owner’s share of the property passing to their estate rather than automatically transferring to the surviving co-owners.
Outstanding Taxes and Creditor Claims Against the Estate
Even when a right of survivorship is properly established, creditor claims or unpaid taxes could take precedence over both right of survivorship designations and the terms of a deceased co-owner’s will or trust.
Creditors generally attempt to satisfy debts with assets in the deceased owner’s estate before pursuing property governed by survivorship rights. However, if estate assets are insufficient, creditors may seek a judgment to recover debts from the deceased owner’s share of the property.
If creditors successfully obtain a judgment against a deceased co-owner’s share of a property, they won’t necessarily take possession of the property or the surviving co-owner’s share. Instead, they may force the sale of the deceased co-owner’s share of the property and collect the proceeds from the sale. This is not ideal, as it can create legal complications for the surviving co-owner(s), especially if they wish to retain ownership of the property.
Right of Survivorship FAQs
If you continue to have questions surrounding survivorship rights, survivorship deeds or joint accounts, check out the frequently asked questions below. For personalized guidance, contact our firm.
What happens if you inherit a property with a mortgage through the right of survivorship?
If you inherit a property with an existing mortgage through the right of survivorship — whether as a joint owner, spouse or registered domestic partner — you not only assume full ownership of the property, but you assume responsibility for the mortgage as well. This means you must continue to make the same mortgage payments the deceased co-owner had been making until the mortgage is paid off or the property (or your share of it) is sold.
That said, reviewing mortgage terms with a knowledgeable real estate attorney is crucial, as some mortgages require full repayment upon transfer. If continuing mortgage payments after a co-owner’s death is not financially viable, you may need to explore selling or refinancing the property.
Keep in mind that if you are a joint tenant, spouse or registered domestic partner, your ownership share remains equal regardless of how much you contribute to the mortgage or improvements to the property. If you prefer for your ownership to be proportional to your financial contributions, holding title as tenants in common may be a more suitable option.
How do you add a right of survivorship to a deed?
You generally cannot add a right of survivorship to an existing deed. Instead, a new deed must be created that explicitly includes right of survivorship language. For instance, the deed should specify that the property is held as “joint tenants with a right of survivorship” or “community property with a right of survivorship.” The deed also must clearly state all the co-owners by name.
While recording a joint tenancy deed with the county recorder’s office is not required in California, doing so is highly recommended to secure proof of ownership.
Because requirements vary by state, it’s essential to review your state laws or consult a knowledgeable attorney to ensure rights of survivorship are properly established.
Can you remove the right of survivorship from a deed?
Yes, the most effective way to remove the right of survivorship from a deed is to execute a new deed that reflects your share of the property as either a tenant in common or community property without the right of survivorship.
Keep in mind that a co-owner — whether they are a joint tenant, spouse or registered domestic partner — can generally sever the right of survivorship unilaterally. However, it is essential for them to review the terms of the original deed, as it may restrict co-owners from severing the right of survivorship or require them to obtain the consent of the other co-owners before doing so.
What is a quitclaim deed with a right of survivorship?
A quitclaim deed transfers a grantor’s interest in a property to a grantee without guaranteeing the title status of the property or the grantor’s ownership rights.
If a quitclaim deed includes a right of survivorship, it means that upon a grantee’s death, their share of the property will automatically transfer to the surviving co-owner(s) without passing through probate.
What is a warranty deed with a right of survivorship?
A warranty deed offers the strongest protection for a grantee, as it guarantees the grantor has a clear and valid title to the property, as well as the legal right to transfer it.
If a warranty deed includes a right of survivorship, it ensures that upon the grantor’s death, their share of the property will automatically transfer to the surviving co-owner(s) without the need for probate.
Does tenancy in common have a right of survivorship?
No, tenancy in common does not include a right of survivorship because each co-owner holds a separate and transferable share of the property. In other words, the surviving co-owners do not have automatic entitlement to a deceased co-owner’s share.
Since tenancy in common does not allow for the direct transfer of property upon death, the deceased co-owner’s share must generally pass through probate — unless it was previously transferred to a trust, which can enable it to bypass probate.
How do I know if I have a right of survivorship?
To determine whether you have a right of survivorship, simply review the property deed or joint account agreement, as the right of survivorship designation should be expressly stated on the document.
If you’re unable to locate the deed or need clarification, consider consulting a real estate or probate attorney for assistance.
How is a survivorship deed different from a transfer-on-death deed?
When comparing a survivorship deed to a transfer-on-death (TOD) deed, the key difference lies in ownership structure.
Survivorship deeds transfer a present interest in a property to joint tenants and ensure that, when one co-owner passes away, their share will automatically transfer to the surviving co-owner(s).
On the other hand, TOD deeds allow the property owner(s) to retain full ownership during their lifetime. Upon their death, however, ownership will automatically transfer to the beneficiary or beneficiaries listed on the deed.
Although survivorship deeds and TOD deeds function differently, both typically allow property to transfer without going through probate.
What does “full rights of survivorship” mean on a deed?
There is no difference between “rights of survivorship” and “full rights of survivorship” on a deed, as both designations call for a deceased co-owner’s share of a property to pass directly to the surviving co-owners outside of probate.
Still have questions about rights of survivorship?
If you have questions about survivorship rights, our experienced probate attorneys are here to help. Whether you need assistance navigating a property dispute or simply require clarity on your legal rights and obligations, we can provide expert guidance. Contact us today to find effective solutions to your legal issues.
