The right of survivorship is an important legal concept that everyone creating an estate plan needs to understand. As with other property rights, a right of survivorship is not always well understood by the general public, even though these rights can play a significant role in their lives. Anytime you have a question about a legal issue you need to speak to an attorney for clarification and advice. In the meantime, here’s what you should know about the right of survivorship.
Survivorship and Joint Tenancy
The right of survivorship is often something that applies when people own the property in joint tenancy. Joint tenancy is a form of property ownership that most often accompanies real estate. When joint tenants own a piece of real estate they are considered co-owners. In some joint tenancies people can own equal shares of the property, while in others they might own unequal shares.
There are different types of joint tenancy, and the joint tenancy with right of survivorship is one of the more common. When you own the property as a joint tenant with a right of survivorship, you and the other co-owners have equal and specific rights. Upon the death of the other owners, the sole remaining joint tenant becomes the solitary owner.
For example, let’s say you and your two siblings receive an inheritance from your grandparents. Your grandparents give you the family farm as joint tenants with right of survivorship. Under this inheritance gift, each sibling becomes a co-owner. They will remain co-owners until they die. Once there is only one sibling remaining, that sibling automatically becomes the sole owner of the property.
Right of Survivorship and Probate
The reason rights of survivorship are so important for people developing estate plans is because they allow some probate avoidance benefits. When there is only one co-owner remaining, that person becomes the sole owner of the property automatically. There is no need for the property first have to go through the probate process before the sole remaining owner can take possession, because he or she already is an owner.
However, once the sole surviving co-tenant has become the sole owner of the property, it will no longer pass outside of probate after the sole owner dies. To transfer the property outside of probate, the owner will have to take additional steps.
Survivorship and Estate Planning
Right of survivorship does have its potential benefits, but it isn’t right for everyone in every situation. If you have questions about the right of survivorship, are considering using this type of property ownership as part of your estate plan, or need advice about your options, your first choice should always be to talk to your attorney.
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