Survivorship

Definition

Survivorship is the right of a surviving joint tenant to automatically inherit the share of a deceased joint tenant in jointly owned property. This right is inherent in forms of co-ownership called joint tenancy or tenancy by the entirety. When a property is held in joint tenancy, the entire interest in the property passes directly to the surviving joint tenant(s) upon the death of one tenant without having to go through probate. Survivorship effectively prevents the heirs of the deceased tenant from making any claims to the property.

Examples

Real Estate

Two siblings, John and Jane, own a house as joint tenants. Upon John’s death, Jane automatically becomes the sole owner of the property through the right of survivorship, meaning John’s heirs have no claim to the house.

Joint Bank Accounts

If two friends, Alice and Bob, hold a joint bank account and Alice dies, Bob gains ownership of the entire account balance through the right of survivorship. This ensures that Alice’s heirs cannot lay claim to the funds within the account.

Investment Accounts

Chris and Dana own a joint investment account. When Dana dies, Chris retains full control and ownership of the investment account automatically due to the right of survivorship, bypassing any potential claims from Dana’s heirs.

Frequently Asked Questions (FAQs)

What is the difference between joint tenancy and tenancy in common?

Joint Tenancy includes the right of survivorship while tenancy in common does not. In tenancy in common, the deceased tenant’s share passes to their heirs according to their will or state law.

Can survivorship be challenged?

Generally, the right of survivorship is definitive and supersedes claims from heirs. However, challenges may arise in cases of fraud, undue influence, or documentation errors.

Does survivorship apply to all types of property?

Survivorship commonly applies to real property, joint bank accounts, and specific financial accounts. It does not apply to tenancy in common or individual ownership property types.

How does one establish a property with right of survivorship?

To establish a joint tenancy with right of survivorship, co-owners need to explicitly specify this in the property deed or account documentation at the time of acquisition.

Is probate necessary for jointly owned property with right of survivorship?

No, probate is not required for property with a right of survivorship since ownership transfers automatically upon the death of one tenant.

Joint Tenancy

A property jointly owned by two or more parties, with each party having an equal share and the right of survivorship.

Tenancy by the Entirety

A form of joint tenancy only available to married couples that includes the right of survivorship.

Tenancy in Common

A form of co-ownership where each tenant holds an individual share which can be bequeathed to heirs rather than passed to surviving co-tenants.

Online Resources

Suggested Books for Further Studies

“Real Estate Law” by Marianne M. Jennings
“The Complete Guide to Joint Property Ownership” by Emily Chase Smith
“Principles of Property Law” by Herbert Hovenkamp

Fundamentals of Survivorship: Real Estate Law Basics Quiz

### What happens to the property under joint tenancy when one tenant dies? - [x] The property automatically passes to the surviving tenant(s). - [ ] The property must go through probate. - [ ] The property is equally divided among the deceased tenant's heirs. - [ ] The property is sold, and proceeds are distributed. > **Explanation:** Under joint tenancy, the entire interest in the property passes directly to the surviving joint tenant(s) upon the death of one tenant without requiring probate. ### Which feature is unique to a joint tenancy but not a tenancy in common? - [x] Right of survivorship - [ ] Unequal ownership shares - [ ] Individual shares being inherited by heirs - [ ] Ownership not being transferable > **Explanation:** Joint tenancy features the right of survivorship, meaning the surviving tenant(s) automatically inherit the deceased tenant's share. Tenancy in common does not have this feature. ### Can a joint tenancy be converted into a tenancy in common? - [x] Yes, with the consent of all joint tenants. - [ ] No, once established, it cannot be changed. - [ ] Yes, but only after the death of a tenant. - [ ] No, it requires court intervention to change. > **Explanation:** With the consent of all joint tenants, a joint tenancy can be converted into a tenancy in common, changing the nature of ownership. ### How is joint tenancy generally created? - [x] By expressing the intention to create joint tenancy in the deed or title documents. - [ ] Automatically through shared residency. - [ ] By common law default. - [ ] Through separate written agreements. > **Explanation:** Joint tenancy is created by explicitly stating the intention to do so in the deed or title documents when establishing ownership. ### In which scenario does right of survivorship not apply? - [ ] Joint tenancy - [ ] Tenancy by the entirety - [x] Tenancy in common - [ ] Joint bank account > **Explanation:** Right of survivorship does not apply to tenancy in common, where each tenant's share can be inherited by heirs per the deceased tenant’s will. ### How does tenancy by the entirety differ from joint tenancy? - [x] It is only available to married couples. - [ ] It includes equal ownership for non-married individuals. - [ ] It has no survivorship rights. - [ ] It involves more than two owners. > **Explanation:** Tenancy by the entirety is a form of joint tenancy that is exclusively available to married couples and includes the right of survivorship. ### What legal document is typically used to establish joint tenancy in real estate? - [ ] A will - [ ] A verbal agreement - [x] A property deed - [ ] Power of attorney > **Explanation:** A property deed is typically used to establish joint tenancy in real estate, where the deed must state the intention to create joint tenancy explicitly. ### Who generally benefits the most from the right of survivorship in joint tenancy? - [ ] The heirs of the deceased tenant - [ ] The state - [x] The surviving tenant(s) - [ ] The deceased tenant's creditors > **Explanation:** The surviving tenant(s) benefit the most from the right of survivorship in joint tenancy as they automatically inherit the deceased tenant's share. ### What main advantage does the right of survivorship provide? - [ ] Reduces the value of property - [x] Avoids probate - [ ] Increases inheritance tax - [ ] Eliminates mortgage obligations > **Explanation:** The main advantage of the right of survivorship is that it avoids probate, allowing for seamless transfer of the deceased tenant’s share. ### Which estate planning tool can also effectively bypass probate like survivorship? - [ ] Traditional will - [ ] Guardianship - [x] Living trust - [ ] Life insurance > **Explanation:** A living trust can also effectively bypass probate like survivorship, as it transfers assets directly to beneficiaries without probate proceedings.

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