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Right of survivorship is a right granted to joint (Shared by two or more) property owners that protect the transfer of one owner's stake to the remaining property owner(s) in case of their death.
Creating a survivorship deed as an owner(s) is typically the best way to gain this right by clarifying that they want to be joint tenants with the right of survivorship. Whether that be initially when registering a land title or while transferring the land title with a survivorship deed. This application is written as JTWROS (Joint tenants with right of survivorship).
Writing yourself into a right of survivorship as a surviving owner is easy at the time of purchase. This can be done by including JTWROS on the purchase title after your names (This will be done by all involved parties).
On the other hand, if you already own a property/ land and want to split or transfer partial ownership to another person or party, you can do so through a survivorship deed.
As with all areas of law, there are both advantages and disadvantages for all parties involved. Right of survivorship (Joint property ownership), when used correctly, can ensure the property stays within the correct hands even if it has been written within the will of one owner.
The main advantage of a JTWROS is it avoids probate when one owner dies and greatly benefits the surviving owner. Probate is the legal process where a person's will is proven in court and accepted as a legal document. Having a JTWROS set up means the legal heirs of the deceased estate cannot inherit their property once the document has been established.
A second advantage to joint ownership would be the remaining party(s) being allowed to continue using the asset without any obstruction or interference from outside parties.
A final benefit for the party(s) within a jointly owned property would be any and all bills will be reasonably shared and split (Such as maintenance, taxes, and repairs), taking the burden and sharing it between other owners.
For some, it is a pro and for others, a con, not having the ability to ensure a property can be willed over in the case of a death can be a negative. While the surviving joint tenant will have to ensure they are able to pay the remaining costs of bills and property interest.
Unintentional disinheriting can become a real disadvantage with the right of survivorship as the main benefit is it avoids probate, it can leave the deceased owner's beneficiaries with nothing. For example, if a father/husband with kids from a previous marriage dies first. The property passes automatically to the wife. If the husband's kids aren't in the 2nd wife's will then they will receive nothing.
Incapacity of one joint tenant can lead to the management of the property becoming very difficult. As they aren't legally allowed to sign their decisions (Such as selling or transferring the asset), even if the co-owner is a spouse, can lead to a lengthy process with many legal forms.
Joint tenancy or tenants in common can involve two or more party owner(s). Each tenant in common can either own an equal share (If there are four parties in a joint tenancy then each party has a 25% share) or they could have a portion of their interest broken down (E.g. 15%, 20%, 15%, 50%). With this in mind, each joint tenant has an equal right to the benefits of the entire asset/ property, unless, otherwise agreed upon.
When two or more parties own an asset such as real estate, then each would own a share. More commonly known as an interest of said asset. This would be classified as undivided interest as each owner has a right to use the entire property even though they may only hold a small percentage of interest.
Within the joint tenancy, one owner(s) is freely allowed to sell their share (Interest). Typically, within these agreements are clauses that allow joint owners to have first dibs on the interest; this is case by case. The same situation applies during an owner's death. Their share can be passed on within their will and whoever is the beneficiary receives the interest and takes the joint tenant's place.
As joint tenancy does not legally split up a property/ asset it is still taxed as one complete package. It is up to the joint tenants to work out between themselves to determine how much each of them pays. Just like a standard business expense, the cost of property tax can be claimed back as a taxable expense.
Generally speaking, yes. The entire property of the asset can become sole ownership of the surviving joint tenant. Meaning, that the joint tenancy becomes in full control of the surviving party up to and including who in their will receives the asset (The initial deceased owner's heirs receive nothing from a will).
Community property with right of survivorship can often be a preferred method of ensuring a spouse receives the full rights to a property in lieu of a joint tenancy agreement. It is used to easily ensure a surviving spouse can claim full and complete ownership of the community property upon death. The remaining spouse typically only needed to fill out a few forms with a certified death certificate. Note: It is very important to contact a local law firm (Or one that knows the laws in your state) as there can be subtle differences in the writing of laws. You are able to find further information regarding the basic principles of community property law here.
In essence, a probate court is a court that involves hearing of matters surrounding a person's death and estate. As an example, it covers the allocation and distribution of a deceased estate's assets according to their will (Or lack of one). Typically, a right of survivorship agreement will supersede the assets left in a will and the deceased owner's share won't be passed onto their heirs.
It's important to initially note that we have covered this topic with a general scope and understanding. Make sure to see legal advice (Especially legal documents that pertain to your local laws). For those living in the US, you can use websites such as FindLaw and AVVO, that can help you find legal services.
Are you looking at drafting tenants in common or joint tenants agreement? Law Depot has many great tools and legal support to do this yourself.
Do It Yourself Survivorship Deed
Do It Yourself Rental/ Lease Agreement
Joint Tenancy Pros:
1. Access to the right of survivorship with the property in the event an owner dies. Allowing the surviving owners to avoid probate of the deceased heirs. This, by far, is typically seen as the main advantage.
2. Joint tenants are entitled to their share of profits that are derived from either rent paid, the discovery of resources (E.g. Gas, ores, and oil), and other commercial revenue.
3. Another benefit can be helping to avoid taxable exchanges, including affecting your lifetime gift totals.
Joint Tenancy Cons:
1. Maintainance and repair costs on almost all properties can be one of the most expensive considerations. Sharing joint tenancy means each owner is liable for either their share or proportional share in costs.
2. Just as this can be seen as a pro, for some, it is also a con that there are no inheritance rights. The surviving owner takes the property title even if the deed is left in the will.
3. Compensation of waste is another consideration as any waste a joint tenant commits against the property/ asset may have to be compensated for.
If only one owner decides to stop paying their interest of shares then the other tenants in common must make up the difference. Basically, all owners are liable for the debts and tax of the property equally.
An owner can decide at any time to sell their ownership interest to a third person/ stranger to other owners if they decide.
The remaining owners do not automatically get the share from a deceased owner (Or even get the right to purchase the share) as it will then move through the will/ go to probate.
Big problems can arise when debts on a shared mortgage aren't paid. If one person defaults on the loan (Sometimes, even a loan attached to the common asset) the other co-owners can be held responsible for paying it back. Even if the share of the property is split in an uneven amount.
A lender will see the loan/ debt as a whole and not just your share of it.
A simple answer would be, no. As the definition of joint tenants (and furthermore right of survivorship), each party has full and equal access to the asset. There have been cases where this point has been argued but typically it's easier to see joint tenants as equal shareholders.
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