Survivorship

What is Survivorship?

Survivorship is a legal concept in property law referring to the rights of surviving joint tenants to maintain full ownership of jointly held property upon the death of one or more other joint tenants. Under survivorship, the property directly transfers to the surviving owners without going through the probate process.

Joint tenancy with right of survivorship is commonly used to ensure that property is passed on seamlessly and avoids the often lengthy and costly probate estates. This type of ownership means each joint tenant has an equal share, and these shares automatically transfer to the surviving co-tenants when one dies, rather than to the deceased tenant’s heirs.

Examples

Siblings Owning Property:
- Travers and Vance Mead, brothers, own an apartment building with joint tenancy and the right of survivorship. When Travers dies, Vance automatically becomes the full owner of the entire building through survivorship.
Marital Property:
- Kathy and John, married partners who bought a vacation home together, hold the property as joint tenants with the right of survivorship. When John passes away, Kathy immediately becomes the sole owner of the home.

Frequently Asked Questions (FAQs)

Q: How does survivorship benefit joint tenants? A: Survivorship provides an uncomplicated method of transferring property ownership upon a tenant’s death without probate delays. It ensures that the remaining joint tenants gain full ownership smoothly, bypassing complex legal proceedings.

Q: Can a joint tenant will their share of a property? A: In a joint tenancy with rights of survivorship, a joint tenant cannot will their share of the property to someone else. The entire share transfers to the surviving joint tenants automatically.

Q: Does survivorship apply to all joint property types? A: Not always. Survivorship applies to properties explicitly held as joint tenancy with right of survivorship. Other arrangements like tenancies in common do not include survivorship rights, allowing the decedent’s heirs to inherit their share.

Q: Can a joint tenancy with right of survivorship be broken? A: Yes, a joint tenancy can be severed. Converting a joint tenancy to a tenancy in common removes the survivorship rights, changing how the property is owned and transferred.

Q: Are there any tax implications with survivorship? A: Potentially. When property transfers through survivorship, the surviving joint tenants might face tax implications, particularly regarding capital gains tax if the property appreciates in value.

Joint Tenancy: A form of property co-ownership where two or more individuals hold equal shares of property with rights of survivorship. This method avoids probate upon the death of one of the tenants.
Tenancy in Common: Another form of co-ownership allowing each owner to hold distinct shares, which can be bequeathed to heirs. Unlike joint tenancy, this does not include rights of survivorship.
Community Property: Property acquired during a marriage, which is considered jointly owned by both spouses. The rules on passing such property vary depending on jurisdiction and state laws.

Online Resources

References

“Black’s Law Dictionary”, 11th Edition, by Bryan A. Garner
“Real Estate Principles”, 13th Edition, by Charles J. Jacobus

Suggested Books for Further Studies

“Property Law: Rules, Policies, and Practices” by Joseph William Singer
“Real Estate Law” by Marianne M. Jennings
“The Essentials of Real Estate Law” by Lynn T. Slossberg

Real Estate Basics: Survivorship Fundamentals Quiz

### Who automatically gains full ownership of a property under survivorship when one joint tenant dies? - [ ] The deceased tenant's heirs - [x] The surviving joint tenants - [ ] A nominated beneficiary - [ ] The state > **Explanation:** Under survivorship, the surviving joint tenants automatically receive full ownership of the property upon the death of one joint tenant. ### Can a joint tenant transfer their share of property in a will under joint tenancy with rights of survivorship? - [ ] Yes, they can transfer their share to anyone they choose. - [ ] Yes, but only to other tenants. - [x] No, because the entire share transfers to the surviving joint tenants. - [ ] Yes, but only to family members. > **Explanation:** In a joint tenancy with rights of survivorship, a tenant cannot bequeath their share through a will, since the property automatically goes to the surviving tenants. ### What must equal shares in joint tenancy ensure? - [x] Equal ownership and equal rights to survivorship - [ ] Equal spending on property improvements - [ ] Equal tax benefits - [ ] Equal tenancy duration > **Explanation:** Equal ownership and equal rights to survivorship ensure that each joint tenant has an identical share of ownership, which is crucial in a joint tenancy agreement. ### Which type of co-ownership does NOT automatically include rights of survivorship? - [ ] Joint tenancy - [x] Tenancy in common - [ ] Community property - [ ] Co-operative ownership > **Explanation:** Tenancy in common does not automatically include rights of survivorship, allowing individuals to will their share to whomever they choose. ### What process is usually avoided with rights of survivorship? - [ ] The need for insurance - [ ] Maintenance responsibilities - [x] The probate process - [ ] Property taxation > **Explanation:** The probate process is usually avoided when property transfers through rights of survivorship, facilitating a smooth transition of ownership directly to the surviving joint tenants. ### Can survivorship rights be nullified or changed? - [x] Yes, by changing the type of co-ownership - [ ] No, they are unchangeable - [ ] Yes, with mutual consent among tenants - [ ] Yes, only via court order > **Explanation:** Survivorship rights can be nullified or changed by altering the co-ownership structure, such as converting a joint tenancy to a tenancy in common. ### What is a benefit of holding property as joint tenants with right of survivorship? - [ ] Easier mortgage applications - [ ] Better property value appreciation - [ ] Automatic inheritance without the need for a will - [x] Avoidance of probate and smooth property transition > **Explanation:** One clear benefit is the avoidance of probate, enabling the property to immediately transfer to surviving joint tenants, ensuring a seamless transition of ownership. ### What cannot be done with a property held in joint tenancy regarding sale? - [ ] It can be leased freely - [ ] Improvements can be made - [x] Sell/transfer part of an individual's ownership share without dissolving joint tenancy - [ ] It can be re-mortgaged > **Explanation:** In joint tenancy, an individual tenant cannot sell or transfer their ownership share separately without affecting the entire joint tenancy agreement. ### What form of ownership usually applies to marriages in community property states but without survivorship? - [ ] Joint tenancy - [x] Tenancy in common - [ ] Community property - [ ] Corporate ownership > **Explanation:** Community property states typically consider marital property as jointly owned, but 'community property' itself does not confer survivorship rights, differentiating it from joint tenancy. ### What is typically required for title transfer in joint tenancy with right of survivorship? - [x] Presentation of a death certificate - [ ] Payment of high legal fees - [ ] Notification of all heirs - [ ] Court order > **Explanation:** The death certificate proving the death of one of the joint tenants must be presented for the seamless title transfer to the surviving tenants.