Figuring out equity and the transfer of ownership is pretty straightforward when property belongs to just one person. That person can simply bequeath their property to their beneficiary through their estate plan. However, things get a little more complicated when a property is owned by more than one person. This is not uncommon, and two people can own equal shares of a property in joint tenancy. When this is the case, the deed typically includes something called a right of survivorship, which determines what happens to the property ownership should one of the two owners pass away.
So this begs the question, what if the deceased person had also left the property to someone in their Will? Does the right of survivorship take precedence, or does the Will? This guide will walk you through the differences between the right of survivorship vs. will, and in which cases one type of right to ownership overrides the other. This is an important aspect of property ownership that should be addressed when creating any estate plan.
Before we begin, let’s start with a definition of right of survivorship.
What is a Right of Survivorship?
In the context of estate planning, a right of survivorship is an ownership structure that indicates that a jointly-owned property will automatically transfer to the surviving owner. When two individuals own a property in joint tenancy, they each own half of the property. If one of them were to pass away, then the surviving owner automatically absorbs the deceased owner’s interest. After that, they would be the sole owner of the property.
For more information on how a right of survivorship works, check out our in-depth guide here.
How Does “Right of Survivorship” Differ from a Will?
There are several key differences between a right of survivorship vs. will to understand. It’s easy to confuse the two because they are both document types that deal with property and the transfer of property ownership. However, they have different uses and outcomes. We’ll expand on some of these key differences in the below sections.
Document Type: A Will is one of several types of estate planning documents that is used to bequeath both property and assets to loved ones. On the other hand, a right of survivorship is not really a document. Rather, it is an attribute of property ownership that specifies how ownership will be transferred should an owner pass away. You would find a right of survivorship stipulation on a property deed, which is essentially a legal document that proves who owns a property.
Typical Users: A Will and a right of survivorship also have different groups of users. Any individual can create a Will for their benefit, regardless of if they own any real property. A right of survivorship is only associated with a piece of real property (a house) that is jointly owned by two or more people.
Property and Assets: As you may have gathered by now, right of survivorship only concerns property that is jointly owned by more than one individual. It’s a term that you would really only encounter when dealing with real estate. Further, a right of survivorship is tied to a piece of property, and not to an individual. If you own more than one home, for instance, it would not automatically mean that each property has a right of survivorship tied to it. You would have to examine the deed to each property to determine whether or not it has a right of survivorship.
To the contrary, a Will is tied to an individual, and not to a specific asset or property. An individual can implement a Will to designate how they’d like to pass on all of their assets and property to different loved ones in their life. This may lead you to question how a right of survivorship impacts a Will, and vice versa. This is an important point, so we’ll expand on this in more detail shortly.
Transfer of property: One thing in common between a right of survivorship vs. will is that they can both dictate how a piece of property will be passed on, should the current owner pass away. However, the two diverge again when it comes to the manner in which property is transferred.
If a property has a right of survivorship, the ownership is transferred automatically. When one co-owner passes away, then their share of the property interest is absorbed by the surviving co-owner. This process is automatic, and there is no waiting period. When it comes to a Will, the process is not automatic. The deceased person’s estate goes through the probate process as a whole. The probate court will ultimately adjudicate how property ownership will be transferred. The process can take several weeks to months. This means that the individual who inherits the property cannot take immediate action on the property and will most likely have to wait before they can.
Beneficiary: Last but not least, there is a stark difference in a right of survivorship vs. will when it comes to who absorbs property ownership should the owner pass away. In a right of survivorship scenario, there is always more than one owner. When one of the owners passes away, then the ownership automatically transfers to the surviving owner.
When a Will is used to transfer property ownership, then the decedent could have bequeathed the property to their heir. You may have noticed that this creates a discrepancy. What if a property is jointly owned and has a right of survivorship? What if one of the owners bequeathed their property to their child instead of their co-owner? What happens then? We address these complex scenarios next.
Does Survivorship Override a Will?
A valid right of survivorship always overrides a Will. This is because a property that has a right of survivorship passes automatically to the surviving owner, and legally so. Thus, the property legally cannot be included as a part of the deceased owner’s estate. The decedent has no right to bequeath the property to anyone other than their co-owner through their Will.
When a Will Overrides - Tenancy in Common
So far, we’ve discussed how a right of survivorship is tied to a form of property ownership called joint tenancy. Joint tenancy is commonly used when a married couple buys a home together. Each party owns equal shares of the property. If one of the partners were to pass away, then their share of the property would be automatically absorbed by the surviving partner.
There is a different type of property ownership used by multiple owners called a tenancy in common agreement, which does not include a right of survivorship. A tenancy in common agreement allows different owners to own a single property at different times, and each can own varying shares of the property. In the case of tenancy in common, each individual owner does have the right to pass their individual share of the property to their beneficiary through a Will.
If two individuals own a property in joint tenancy with a right to survivorship, but then later decide that they would both prefer to pass their share of the property to a beneficiary rather than to each other, then they can change the deed to a tenancy in common agreement. However, both parties must be in agreement to take this action.
Passing Inside & Outside the Estate - How Do the Right of Survivorship and Will Work Together?
You can make a right of survivorship and a Will work together by design. Let us say that you own your property as a joint tenancy with a right of survivorship with your spouse. This is the most common scenario. You both own equal shares of the property, 50-50. If you were to pass away first, then your share of the property would be absorbed by your surviving spouse. You do not need a Will to make this happen. Your surviving spouse, however, would need a Will, however. This is because they now own 100 percent of the property, and would need to designate an heir to the property.
But what if your spouse died first instead? What if you both died simultaneously, such as in a tragic car accident? Do you share a beneficiary, such as a child? How do you make sure that the property passes to the correct individual?
The good news here is that you can make your Will and right of survivorship work synergistically to address these unknowns.
In your Will, you can state that your property would be passed to your surviving spouse through a right of survivorship should you pass away first. You can also name a back-up beneficiary in the case your spouse predeceases you, or you were to both pass away. This way, your bases will be covered should anything happen.
It’s also recommended that you work with your spouse such that they create a Will that mirrors your own. Alternatively, you could consider creating a mutual Will or joint Trust if you share the same assets and beneficiaries as your spouse. Feel free to click on the links to learn more about whether or not you should create a joint estate plan with your spouse.
Create Your Estate Plan Today
Today we discussed some key differences between a right of survivorship vs. will. The main things to remember are that a right of survivorship dictates that a specific property will be passed directly to the surviving owner, and that this right overrides a Will. However, you should still set up a Will that can cover your bases because the future is unpredictable. Alternatively, if you and your spouse share the same assets and beneficiaries, you might consider setting up a mutual Will. Further, you can add a joint Trust to your estate plan should you wish to keep your property outside of the probate process.
Feeling like you’d like some support around setting up your estate? Not sure where to start, or which of the discussed options is the best one for you? Don’t worry! We’re here to help you from start to finish. Get started today.
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