Right of Survivorship is a tool used in estate planning to protect the intent of a decedent regarding real estate property and other jointly held properties.
FULL ARTICLE: rmolawyers.com/right-of-survi...
0:00 Introduction
0:10 Right of Survivorship Definition
0:57 What are joint tenants with right of survivorship?
2:31 What is a right of survivorship deed?
3:13 What is community property with right of survivorship?
4:08 What are the tax implications?
5:32 Can the right of survivorship be challenged?
6:29 Can I contest a joint account with right of survivorship?
7:14 Right of Survivorship vs. Will
7:49 When should I contact an estate planning attorney?
Right of Survivorship Definition
The right of survivorship refers to the legal right held by a joint tenant, often a spouse, to claim real or personal property upon the death of a joint holder. The right of survivorship only applies to property held in joint tenancy or as community property with a right of survivorship. Given that the right of survivorship takes effect automatically upon the death of one of the joint tenants or spouses, the property does not form part of the decedent’s estate and is not subject to competing claims by other beneficiaries, heirs or creditors of the deceased. As such, it serves as an estate planning tool that allows for the transfer of property interests outside of probate. Notably, the right of survivorship is non-transferrable, ensuring that upon the death of the joint tenant, his or her ownership share will be equally distributed to the remaining tenants.
What are joint tenants with right of survivorship?
As mentioned above, the right of survivorship only exists where there is a joint tenancy or survivorship community property. Joint tenancy refers to the co-ownership of real or personal property, such as a house or money in a joint bank account, by one or more persons. To create a joint tenancy, the tenants must become equal owners of the property simultaneously and in a similar manner. Joint tenancy can be created by the transfer of property, deed, or will, and co-owners of property can choose at any time to convert their ownership to a joint tenancy by amending the property title.
What is a right of survivorship deed?
A survivorship deed is a document pursuant to which parties in a joint tenancy set forth the terms by which the transfer of their property interest will occur upon death. A survivorship deed must include a grantor and a grantee, there must be some form of consideration (often a minimal amount if the deed is between spouses), and it must be notarized. Some states also require that there be a witness to the deed.
Can the right of survivorship be challenged?
Yes, where it is not accurately set forth or an error exists in the way the documentation was drafted, it may be possible to challenge a right of survivorship. Where the documentation is properly drafted, the person challenging the right of survivorship bears the burden of proof. Given that the right of survivorship prevails over wills and other contracts, it is very difficult to challenge. However, the right of survivorship must be clearly and precisely stated in the relevant documentation (e.g., contract, deed or title).
Can I contest a joint account with right of survivorship?
Yes. In the case of a joint account with right of survivorship, the right must be clearly documented. Where it is unclear whether the right of survivorship was intended to be attached to a joint account, evidence of joint use must exist. If this is not the case, and there is no issue with the relevant documentation, someone may be able to contest the right of survivorship by showing that the surviving account holder never used the account, e.g., deposited funds into the account.
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