Through an estate plan, figuring out equity and the transfer of ownership of a property that belongs to one person is a straightforward process. However, there are scenarios when the property belongs to two or more people or entities. The ownership of the equity and transfer ownership of the property becomes the next wonder. In this article we discuss Right of Survivorship vs Will and what you should know about creating your last will and testament.
Dealing with these situations can have more complications. It's not uncommon for two or more people to hold equal shares of a property in joint tenancy. With something called the right of survivorship included in the deed to impact the transfer of ownership, it's possible to know the property's outcome in the case of one of the owners' deaths.
But the right of survivorship doesn't bring all the solutions, especially if the deceased person leaves the property to someone in their Will. There's always the expected conflict of which takes precedence between the right of survivorship vs. Will and the cases that can make one supersede the other. When creating an estate plan, this article addresses these ownership clauses and paves the way to making decisions.
What Is The Right of Survivorship?
Right of survivorship refers to the legal ownership structure that indicates the claim of a jointly-owned property to the surviving owners upon the death of a joint holder. In the case of two individuals owning a property in joint ownership, each person owns half of the property.
The right of ownership included in the property's title during estate planning enables the automation of property transfer to the surviving individuals. This pattern of new ownership continues until only one owner remains. At this point, the last survivor absorbs the shares of the deceased owner's interest. As the sole owner, they claim the absolute property right and can do with it as they wish in their Will.
Right of Survivorship Vs Will – Differences
Both Rights of Survivorship and Wills are document types concerning properties and the distribution of assets to the proper beneficiaries. However, they do not always have the same directions. Some of the key differences between the Right of Survivorship vs Will depend on the following factors:
Mode of Documentation
The Will is a type of estate planning document dictating the transfer of assets to loved ones. Compared to the Will, the right of ownership is not an entire document since it's only stipulated on the property deed. The right of survivorship represents an attribute of property ownership to direct the transfer process in the situation of one of the owner's death.
Prospective Users
It's often possible to encounter either the right of survivorship or a Will when dealing with real estate planning. However, the right of survivorship is only suitable for a real piece of property owned by two or more people – while even people who don't own any property can create a Will.
Document's relevance
The designation of a Will shows the transfer of ownership of an individual's assets. The document covers the entirety of their assets and the intent to pass them on to their loved ones. Survivorship's linkage is to only one piece of property that more than one individual jointly owns. This type of documentation has no association with the owners' other properties.
Manner of transfer
The right of survivorship and the Will are similar in that both documents can determine the transfer of a piece of property based on the owner's death. But the manner of transfer varies. The transfer process from a deceased owner to the other living owners is automatic without a waiting period for the right of survivorship. On the other hand, Wills can go through a probate process to dictate the new property ownership, taking weeks or months.
True beneficiaries and agreement
Upon the death of a property owner, there's always more than one person receiving ownership from the right of survivorship. However, in a Will scenario, an heir is most likely absorbing the property ownership, which can raise many questions when the property belongs to more than one person.
When Can Survivorship Challenge a Will?
Generally, a legal right of survivorship supersedes a Will. If a deceased owner wrongfully transfers a jointly owned piece of property to an heir in their estate plans, such transfer is invalid. Therefore, the decedent has no right to distribute properties with joint tenancy to anyone other than the co-owners through their Last Will. However, there are complex scenarios where one can override other agreements.
Joint tenancy and tenancy-in-common agreements
Besides joint tenancy, another term called tenancy-in-common is also a form of property ownership when multiple owners are involved. This agreement doesn't include the right of survivorship and allows ownership of the property to different owners at different times.
Unlike joint tenancy, where each owner has equal rights to their asset, the tenancy-in-common offers individual owners varying shares of the property. This way, the owners can pass their respective share of the property to their chosen beneficiary through a Will.
Property owners in joint tenancy can change the right of survivorship on the deed to a tenancy-in-common if all parties agree to this action. Therefore, instead of transferring their property shares to each other, this change allows owners to pass their assets to their chosen beneficiaries.
How Survivorship Relates to a Will
The Right of Survivorship and Wills take action after the owner's death. Although in most cases, the properties with the right of survivorship are excluded from the owner's last Will, it's recommended to examine the deeds to each property to know which one may have a right of survivorship while creating your Will.
The joint tenancy agreement dictates that the property ownership passes on to the other owners, which supersedes the Will. However, there are cases where survivorship and Will can work synergistically. For instance, every current owner in joint tenancy can die simultaneously, and the transfer of ownership needs to get to the correct beneficiary. The property loses its survivorship status when the surviving tenant is the sole owner. Thus, the Will gains more relevance such that the last owner can deem the property as part of their estate and transfer the asset according to their Will.
Due to this scenario's possibility, you can name a backup beneficiary in your Will to protect the property and cover all bases. Your state's laws can also influence the rights of survivorship. It's advisable to check with your local laws and licensed attorneys to confirm how your right of survivorship relates to your Last Will and property.