Right of Survivorship

Right of survivorship lets property in certain ownership types automatically pass to surviving owners. This means the asset bypasses probate and will not be counted as a “probate asset”.

The Right of Survivorship means that if someone owned property with someone else under certain real estate ownership agreements, and they pass away, the remaining person(s) will get that ownership share without needing to go through the legal process known as probate.

This means that whatever property is in question will be classified as a non-probate asset. This is beneficial for executors and families because it lowers the estate's probate asset value, allowing for more efficient probate options, reduces paperwork by switching ownership by way of a sort of pre-determined trigger, and keeps the property in the hands of the other owners.

What Types of Ownership Have the Right to Survivorship?

Out of the 5 major types of real estate ownership, 3 have the option to include the right of survivorship:

Joint Tenancy With Rights of Survivorship (JTWROS)

Joint tenants own property and split rights equally among two or more persons*. And although not all joint tenants have right of survivorship, most agreements assume it under common law, but many states have statutes that can abolish the right, change the presumption of the right, and/or require specific language to create that right*.

So in order to effectively create a joint tenancy with right of survivorship, you must:

• Get all would-be owners to buy or acquire the asset at the same time.
• Have the same title between all owners
• Have equal shares across all owners
• Have the same rights between all owners
• Follow any other parts of state statutes that mandate certain phrases or requirements to create a JTWROS*

This is easier than this makes it sound, but in law the devil is in the details, so you want to make sure you create it correctly.

Joint tenancy is most often applied to real estate, but it can be used with checking accounts, savings accounts, mutual funds, brokerage funds. It is common for partners of any sort, both business and romantic.

If the requirements to prove the right of survivorship in a joint tenancy agreement are not met, the ownership will be treated as tenants in common, forfeiting the right.

When a joint tenancy has the right of survivorship, people refer to it shorthand as JTWROS.

Tenants in Entirety

Tenants in entirety are seen as one entity by the state and are exclusive to married couples. If one spouse dies, the other automatically gets the property without going to probate.

Community Property States

Community property is when any piece of property or belongings purchased by a married couple are automatically split 50% — regardless of whose name is on the legal documents. The only states that have community property are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

What Types of Ownership Do Not Have the Right of Survivorship?

Sole ownership, joint tenants that do not state they have right of survivorship, and tenants in common all tend to not include the right of survivorship*.

So if you see any of those on the deed, then as an executor you will need to count that property, or at least whatever portion of the property the decedent owned, as a probate asset.

What Happens to Property Without the Right of Survivorship?

In situations where the right of survivorship does not exist, that asset will pass on to that owner's heirs or beneficiaries, either according to their will if they died testate (with a will), or according to the local intestacy laws in the jurisdiction where they permanently resided (technically where they were domiciled) if they passed without a will.

This means someone's share could pass on to someone else who wasn't on the original deed, effectively creating a new "owner". This is the case even if it is only for partial ownership, as is the case in tenants in common agreements.

Ben and Courtney were married and owned a house together. Last year, Ben passed away unexpectedly. Because Ben and Courtney owned the house as joint tenants with right of survivorship, Ben's portion of home ownership was transferred directly to Courtney without needing to go through probate. This means Courtney is the new 100% owner, and she, as acting executrix, does not have to add Ben's 50% of the home to the estate's total probate asset value.