Buying property with your partner is a significant milestone and something to celebrate, but it also comes with big responsibilities should one of you pass away. Transferring property ownership is a relatively simple process, but things get a little more complicated when two people own the property. 

To prevent complications with property transfers, people are given the right of survivorship. You may wonder what this means, how it works, and whether it trumps a will. In this guide, we’ll explore whether a right of survivorship trumps a will from a legal point of view. 

Key Takeaways 

• When a property is purchased and owned by two individuals or more, also known as joint tenancy, a right of survivorship is included in the property title.
  
  

• A right of survivorship makes the transfer of property automatic to avoid probate and waiting periods. 
  
  

• If the right of survivorship is valid, it will always override a will in place. 

  
  

Right of Survivorship Explained

If you’re in the process of buying property or setting up your end-of-life plans with an estate planning attorney, you’ve likely come across the term “right of survivorship.”

John Roth, an estate planning attorney and owner of Hawaiʻi Trust & Estate Counsel, explains:

“Rights of survivorship means if you own a joint asset with another person, if one owner dies, that asset automatically goes to the surviving owner(s) because there are rights of survivorship… Rights of survivorship are important for real estate on your deed if you own real estate with another owner.”

When a property is purchased and owned by two individuals or more, also known as joint tenancy, a right of survivorship is included in the property title. This makes the transfer of property automatic and problem-free. 

So, if one property owner passes away, the property is transferred to the other owner(s), and this line of survivorship carries on until one owner is left with all shares in the property. This protects the property from being transferred to an outside person without consent from the owners. 

Many married couples use a right of survivorship to ensure if their spouse passes away, the property is automatically transferred to them. The surviving owner can then leave the property to somebody of their choosing in a trust or through their own will. 

Does Right of Survivorship Override a Will?

One of the most commonly asked questions about the right of survivorship is if it overrides a will. If the right of survivorship is valid, it will always override a will. This means even if you name someone as a beneficiary to your property but have a survivorship deed in the property title, the beneficiary named in the will be passed over.

Once the survivor receives ownership of the property, they can choose whether to share it with the person named in the will. As you can imagine, this can cause family conflict if the deceased does not inform family members about the deed of survivorship. Another thing to consider is estate taxes. Surviving owners are responsible for paying estate taxes on their newly acquired property, so you should ensure all future owners are aware of it. 

One exception allows a will to override the right of survivorship. This is known as “tenancy in common.” Tenancy in common occurs when there are multiple owners of a property. Because this type of ownership does not include the right of survivorship, each owner has the right to pass their share of the property to their chosen beneficiary through their personal will. This is the only time a will can legally override the right of survivorship. 

Keep all your important documents, such as title deeds and your will, stored in a secure location like Trustworthy. Trustworthy is a family operating system you can use to ensure all your documents are organized and people can access them via the permission-to-access features. 

Right of Survivorship vs Will Differences 

As you continue with your estate planning, you’ll likely wonder what the difference between a will and a right of survivorship is since they both transfer assets to another person after the owner's death. Here are some of the differences between these two estate planning methods. 

Different Document Type 

The first difference between the right of survivorship and a will is they’re very different types of documents. For example, the right of survivorship is not actually a document like a will. Instead, it’s an attribute of property ownership that appears as a stipulation on the property title deed. 

Property and Assets Included 

One of the simplest ways to remember the difference between a will and a right of survivorship is that a will is tied to an individual, and a right of survivorship concerns property ownership only. 

As an individual, you use a will to pass on all of your assets, including property (if you are the sole owner), to the beneficiaries. If you have joint property ownership, then this transfer of property will happen according to the right of survivorship stipulation on your title deed. 

Users of a Will and Right of Survivorship 

The difference between these two estate planning strategies is that any individual can create a will even if they own property. Still, only joint property owners can use a right of survivorship. Use Trustworthy to keep your will safe and allow easy access to your estate planning attorney or family members. 

The Manner of Property Transfers 

While both the will and right of survivorship allow for the transfer of property, the difference lies in how this transfer takes place. The right of survivorship allows property to be transferred automatically without any waiting periods. 

A will, however, is not an automatic process. The estate must go through the entire probate process before the court decides how ownership of the property is transferred. This process can take months to complete, and during this time, the person who is set to inherit the property cannot take any action until the process is complete, which can be frustrating. 

Beneficiaries 

When a property is transferred through a will, the beneficiary named in the will can bequeath that property to their heir. However, with the right of survivorship, the property is not transferred to a descendant or an heir. Instead, it is transferred to the next surviving owner.   

Joint Tenancy, Tenancy in Common & Other Agreements

In addition to the right of survivorship, you may have encountered other agreements like joint tenancy, tenancy in common, and tenants by entirety. These are other estate planning strategies that involve property. 

Joint Tenancy

Joint tenancy is when two or more people own property together. This is known as the right of survival. All property owners will come together to create a legally binding agreement specifying the shares of each owner. 

This type of agreement also outlines how the profits and other benefits are shared and each owner’s financial obligations. This joint tenancy is only valid if the owners are listed as joint tenants on the title deed. 

Tenancy in Common

Tenancy in common occurs when multiple property owners have different ownership interests and unequal shares. We’ve mentioned this before, but a right of survivorship does not apply to this type of property agreement, and so a will is used instead.  

Tenancy By Entirety

The other type of property agreement you can use is tenancy by entirety. This type of property ownership is only used by married couples so spouses can own property as a single entity rather than two. 

This is also a form of right of survival, which means if one spouse passes away, the surviving spouse will receive full ownership of the property. For this type of arrangement to work, both spouses need to agree with each other about all property decisions. This means one spouse cannot sell a share of the property without consent. This gives couples peace of mind that their spouse will be cared for.  

Importance of Consulting an Estate Planning Attorney

With so many different terms, rules, and agreements, it’s easy to get confused about which type best suits your needs. Consulting with an estate planning attorney is recommended to avoid any unnecessary complications or misunderstandings caused by a simple error. 

Your estate planning attorney will draft a right of survivorship stipulation that is guaranteed valid and meets the rules and requirements outlined by your state. If you believe the document does not clearly stipulate the right of survivorship with joint tenancy, your attorney can assist with challenging it. 

Keep all your ducks in a row by storing all your estate planning documents on Trustworthy. This can include email correspondence with your attorney and copies of your will and property titles. Share access to this information with your attorney to help streamline the planning process.  

Frequently Asked Questions (FAQs)  

What is the primary advantage of being a joint tenant with the right of survivorship?

The primary advantage of this estate planning strategy is that the property is transferred automatically to the surviving owner without probate or long waiting periods. 

What is the purpose of a survivorship clause in a will?

This clause states that the beneficiaries named in a will can only inherit after living for a specified amount of time after the trust-maker dies. This survivorship period lasts between five and 60 days. 

Does right of survivorship avoid inheritance tax?

No, it does not avoid inheritance tax. 

Do bank accounts have right of survivorship?

Yes, many joint bank accounts will include automatic rights of survivorship, so the surviving account signer will receive ownership of the money in the account without any interruptions.