Death Without Wills & the Rights of Survivorship for a Property

by John Cromwell

While a will is one tool used in estate planning, there are other options available to ensure that your property goes to the appropriate beneficiary after your death. One of those alternatives is making your property subject to a right of survivorship. The benefit of the right of survivorship versus using a will is that the beneficiary obtains the property faster. Property and probate law operate under state law, so consider consulting with an attorney licensed to practice in your state if you want to create a right of survivorship or if you wish to determine if a right of survivorship exists on a piece of property.

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Probate

The probate process is a legal proceeding where a local court oversees the distribution of a deceased person’s property. The court appoints an administrator to manage the day-to-day tasks of inventorying and accumulating the decedent’s assets into the estate, determining which financial obligations of the decedent are still outstanding, and then using the estate’s assets to pay off the debts. When the obligations are paid off, the administrator may then distribute the remaining estate property.

Intestacy

When someone dies without a will, his estate is considered intestate. The estate still goes through the probate process, but the deceased person’s assets are distributed based on a state-approved scheme to the decedent’s surviving relatives. The closer the relationship, the more that relative gets. So a surviving spouse, the decedent’s children and parents would get the majority of the estate in most circumstances. If the spouse, children and parents die before the decedent, then other relatives may qualify for a distribution.

Estate Defined

A probate estate is essentially everything that the decedent owned prior to death. The confusing aspect of this definition is that property the decedent got to use or benefit from during his life may not be included in the estate. For example, if the person is a beneficiary of a trust, the trust property is not included in his estate. Also excluded from the estate are rights to property that the decedent had which were subject to conditions. Examples of this type of property interest include life estates and property subject to a right of survivorship. A life estate means that the decedent and had ownership of the property for the duration of their life. Once they died, the property ownership automatically changed to someone else, leaving that property out of the decedent's estate.

Right of Survivorship

If the decedent owned property as a joint tenant with right of survivorship, the property is not included in his estate so long as at least one other co-owner remains alive. Co-owners with right of survivorship lose their interest in the property when they die unless they are the last surviving co-owner. If the decedent was the last surviving co-owner, then she owned the property outright at the time of her death and it should be included in her probate estate. A right of survivorship is created by either a deed or a will.