Using a Survivorship Deed

Using a Survivorship Deed

by Belle Wong, J.D., December 2018

Survivorship deeds are common estate planning tools—and for good reason. With a survivorship deed, when one co-owner passes away, the property title transfers to the surviving co-owners without the need for probate, which can be a time-consuming and somewhat complicated process. That can make a survivorship deed an invaluable tool in your estate plan, particularly if you're contemplating the transfer of property to a spouse or your children.

Joint Tenancy with Right of Survivorship Deed

A survivorship deed always involves a joint tenancy. However, it's important that the survivorship deed clearly contains wording that it is a joint tenancy with the right of survivorship. While two or more property owners can be owners in joint tenancy, it's the right of survivorship that permits the transfer of title to the property in question from one joint tenant to the other in the event of death.

Often when people hold property together, they do so as tenants in common. But when two or more people hold property in joint tenancy with the right of survivorship, none of the joint tenants can bequeath the jointly held property to beneficiaries named in a will, nor can a joint tenant's heirs inherit if that joint tenant dies in intestacy, or without a will.

Instead, where a joint tenancy with right of survivorship exists, on the death of one of the joint tenants, the property is divided equally among the remaining joint tenants, or co-owners, without the property having to go through probate. This means that the surviving co-owners automatically get full legal title to the deceased joint tenant's portion of the property being held in joint tenancy.

General Warranty Deed with Survivorship

Two common types of survivorship deeds are the quitclaim deed with right of survivorship and the warranty deed with right of survivorship. The quitclaim version is a simple deed that's useful for transferring property to people to whom you are related, such as property transfers to adult children. A quitclaim deed does not provide any warranties as to the condition of the title being transferred.

While more complicated, a warranty deed with right of survivorship is not restricted to the transfer of property, only to your relatives. As its name suggests, a warranty deed provides assurance to the buyer, usually in relation to the condition of the title being transferred, and is often used by sellers to transfer property to two or more buyers who desire the features of joint tenancy with survivorship.

Contesting a Survivorship Deed

The entire purpose of a right of survivorship is to pass title to other joint tenants on death of one of the joint owners. A survivorship deed, or a joint tenancy with right of survivorship, is much more difficult to contest than a will bequeathing property to beneficiaries.

However, one circumstance in which a survivorship might be successfully contested is when the document granting right of survivorship has not been properly drafted. In order for a right of survivorship to be granted, the documentation must clearly spell out this right. This makes accurate wording of a joint tenancy with a right of survivorship particularly important, as proper drafting greatly reduces the chances that such a document will be successfully challenged. To ensure your documents are as accurate as possible, consider using an online service provider with expertise in this particular area of estate planning.