Survivorship Deed

A person who gives away personal property outright will lose all control and use. Transferring property outright while one is still alive is not a good decision. Outright transfers may also have income tax and gift tax implications.

Most property owners prefer adding someone to the title to avoid the drawbacks associated with transferring the whole property. It would help if you ensured that the property is titled with the right of survivorship to make it work. Adding a beneficiary to a title can prevent probate if done correctly.

It is often better to add someone to a TOD or ladybird deed rather than use a deed with the right of survivorship since it involves probate. A TOD or ladybird deed avoids the need for probate at death without transferring ownership. By doing so, the property owner avoids probate at death while maintaining complete control over the property.

 

Right of survivorship: What is it?

On the death of another owner, one owner has the right to inherit the deceased owner’s property.

It is clear from the definition that there must be two owners for the right of survivorship to apply. If there is only one owner, no other can claim the property when the first owner dies.

It is also essential to have human owners (often called natural persons in legal material) who can trigger the right to survivorship. Only human life spans trigger the right to survivorship. An LLC, trust, or entity other than a human cannot hold title with the right of survivorship.

 

How Do Survivorship Deeds Work?

It is technically impossible to name a survivor deed or right of survivorship deed as a type of deed. Survivorship is a type of co-ownership and is not a deed. Deeds are usually referred to by the warranty of title that they provide. A right of survivorship deed refers to property owned under a co-ownership system that includes a right of survivorship.

Several states, especially California, refer to the deed as a survivorship deed, causing a conflict between other statutes that refer to the deed as a warranty of title. As a result of these conflicts, it is often advisable to name the deed after the warranty of title and use the survivorship deed as a secondary title. Usually, it is best to name it after the warranty of the title.

 

Survivorship Deed Elements

Families, couples, and businesses widely use survivorship deeds to transfer property. Survivorship typically includes the following components:

 

Describe the transferred property clearly:

Deeds must describe the transferred property clearly, including its legal description. This appears in public records or the deed to the property.

 

Survivorship Clause:

In a survivorship deed, the survivorship clause states that the remaining owners inherit the property when one owner passes away. By doing so, the property will avoid the lengthy and expensive probate process.

 

Clearly state the names of all owners:

Survivorship deeds must clearly state the names of all owners transferring property, their ownership percentages, and any limitations or restrictions on ownership rights.

 

Signatures:

Signed survivorship deeds reflect the agreement between the owners to adhere to the terms of the survivor’s deed, and a notary public must witness their signatures.

 

Recording the deed is essential:

Recording the survivorship deed at the county recorder’s office is essential. It lets others know the property’s survivorship ownership and makes the deed a public record. The deed can prove helpful in future disputes or legal issues regarding ownership if it survives.

 

Nominal Consideration:

Regarding a survivorship deed, consideration is usually nominal. Meaning that little or no money changes hands between the owners. Despite that, it is essential to state the consideration in the deed.

 

Identify the property by Legal Description:

It is essential to identify the property by its legal description because it provides information about its boundaries and other characteristics that set it apart from similar properties in the area.

 

Get Title Insurance:

Property owners should get title insurance to protect themselves against property ownership disputes as part of establishing a survivorship deed.

 

Survivorship Deed Advantages

These types of deeds have several critical benefits.

 

 

·        A fantastic alternative to avoid probate:

Survivorship deeds are a fantastic alternative to avoid probate, the legal procedure for settlement of an estate following the death. Without probate, the property automatically transfers to the surviving owner(s) without going through it. Probate can be time-consuming and expensive and may need the court to sell the property to pay debts or taxes.

 

·        Protection of Property:

In a survivorship deed, creditors cannot seize the property to pay off only one owner’s debt. Two or more joint tenants can own property as joint tenants with rights of survivorship.

 

·        Ease of Transfer:

A surviving owner’s deed allows for easy property transfer upon death without additional legal paperwork or steps. Upon the death of an owner, the property automatically passes to the surviving owner(s). As a result, family members or heirs can easily manage the property after their loved one’s passing.

 

·        Cost Savings:

It avoids the need to go to probate, which can be costly and take months or even years. With a survivorship deed, the property transfers quickly and without additional legal costs.

 

·        Providing clarity:

Providing clarity helps avoid future disputes or misunderstandings about ownership. With joint tenancy with survivorship, each owner has a total share of the property.

 

·        Tax Benefits:

It may be advantageous to transfer property through a survivorship deed rather than through probate since survivorship deeds may result in fewer taxes due.

 

·        Continuity of Ownership:

As long as a survivorship deed is in place, surviving owners can manage the property without interruption. Mainly if the property is rented or earnings-producing.

 

·        Peace of Mind:

The survivorship deed can provide owners with peace of mind, protecting their share of the property against creditors and other legal disputes while allowing their property to pass to the surviving owner(s) without going through probate.

 

·        Avoidance of Inheritance:

It can prevent family members from fighting over the property or contesting the will when survivorship deeds clarify who owns and shares the property.

 

·        Flexibility:

With survivorship deeds, owners can sell their share of a property without the consent of the other owners. However, the survivorship deed ensures that the property remains in joint tenancy with survivorship rights.

 

Why Is It Essential To Have A Survivorship?

By creating a survivorship deed between two or more owners, a “joint tenancy” of the property is established between them. The interest will automatically pass to the surviving owner if the other dies.

Without a survivorship deed, the surviving tenant(s) may have to file a probate case to transfer their property interests legally.

Along with bypassing probate courts, survivorship deeds grant each tenant the same share of the title and the same right to occupy and use the property as the rest of the tenants.

 

Profits or expenses

Additionally, any profits or expenses associated with the ownership or use of the property are equally divided among the owners. The survivorship deed transfers all rights and interests to the survivors proportionally when a death occurs.

Some survivorship deeds conflict with the owner’s wills or estate plans. In most cases, survivorship deed provisions override wills or estate plans. This importance underscores the importance of reviewing estate planning with an experienced attorney.

 

Joint Tenancy Deed with Right of Survivorship

There is always a joint tenancy in a survivorship deed. However, it is essential to clearly state that it is a joint tenancy with a right to survivor. Joint tenancy allows two or more property owners to own the property simultaneously. However, in the event of a death, the right of survivorship allows a joint tenant to transfer ownership of the property to another joint tenant.

Tenants in common are usually the people who own property together. When two or more individuals hold property as joint tenants with the right of survivorship, neither may bequeath the jointly held property to beneficiaries in their will nor can the joint tenants’ heirs inherit if the joint tenant passes away intestacy or without a will.

 

The right of survivorship

It doesn’t have to go through probate when one of the joint tenants dies when a joint tenancy with the right of survivorship exists. Instead, the property is divided equally among the remaining joint tenants, or co-owners, on the death of a joint tenant. In this case, the surviving co-owners receive the deceased joint tenant’s legal title to their property.

 

Deed of General Warranty with Survivorship

A quitclaim deed with survivorship and a warranty deed with survivorship are two types of survivorship deeds. This simple deed can transfer property to relatives, such as adult children, or to transfer property to someone related to you. A quitclaim deed provides no warranty as to the condition of the title.

In contrast to a warranty deed that only transfers property to your relatives. A warranty deed with the right of survivorship does not limit the property transfer. Sellers use warranty deeds to transfer property to buyers who desire joint tenancy with survivorship. It is usually based on the condition of the title in question and is often used to convey these features to two or more buyers.

 

What Is The Process For Creating A Right Of Survivorship?

The deed can contain particular language that creates the right of survivorship. The deed may include the owners’ names and indicate that the property belongs to them as joint tenants with a right of survivorship.

A community property with a right of survivorship deed for a married couple may also state that the property belongs to the couple as a community property.

 

A separate survivorship agreement

Some states require a separate survivorship agreement as an additional requirement. A separate marital or community property agreement is necessary to create survivorship rights in Texas. These agreements appear in the county land records with the deed to ensure that the property passes to the surviving owners when an owner dies.

As opposed to other right-of-survivorship deeds, tenancy by the entirety is a type of tenancy in states that recognize it. It follows that a married couple’s property will be held in tenancy by the entirety in those states.

 

Key Terms

 

Survivorship Deed:

The legal document permits property owners to transfer their ownership directly to the surviving owner in the death of a joint owner.

 

Joint Tenancy:

Co-ownership of property with a right of survivorship between multiple people.

 

Grantor:

A person who creates and executes a survivorship deed transfers property ownership.

 

Tenancy in Common:

When multiple people own an interest in a property but do not have a right to inherit it.

 

Contingency:

An arrangement stating what happens if a joint owner dies or becomes incapacitated.

 

Grantee:

The person or persons who inherit the property through survivorship.

 

Probate:

The process of distributing an estate after death. Survivorship can avoid this process.

 

Estate Planning:

Making arrangements for transferring assets after death may include a deed.

 

Property Taxes:

The tax imposed on a property may depend on the ownership structure and property transfer via the survivorship.

 

Title:

An official document that transfers ownership of property via a survivorship.

 

Conclusions on Survivorship Deeds

When one of the property owners passes away, this deed allows the property to pass to the remaining joint owners automatically. Usually, people use this type of deed as a joint tenancy when they own property together.

Survivorship can also help avoid probate, which is time-consuming and costly. Instead, the property passes directly to the surviving owner without any involvement from the courts.

For those who wish to guarantee that their property passes smoothly to their loved ones after they die, a survivorship deed can be a valuable estate planning tool. Professional legal advice is essential to ensure the survivorship deed is executed correctly and is compatible with the overall estate plan.