Joint Tenants With Rights of Survivorship Vs. a Will

By Marie Murdock

You may have heard the term "survivorship deed" in conversations relating to estate planning, and so you may be wondering if you and your spouse should have survivorship provisions in your deed or make reciprocal wills leaving your property to each other. The benefits of survivorship provisions in estate planning depend on your circumstances and what you are trying to accomplish.

Benefits of Survivorship Deeds

If you are married and have no children or if you only have children with your spouse and intend for your spouse to inherit your real estate at your death, then you may wish to own your property as joint tenants with rights of survivorship. This provision in a deed will ensure that your spouse gets your real property immediately at your death without your having to leave it to her in a will. Survivorship provisions are not just for married couples either. Generally, any two or more adults capable of owning property may acquire it as joint tenants with survivorship rights.

Issues Involving Survivorship

A survivorship deed only conveys real estate to the joint tenant. Any personal property, such as vehicles, cash or investment accounts that are only in your name, may still have to transfer to your surviving heirs through a will. Even if you have survivorship provisions in a deed, if you were to die at the same time as your spouse so that it could not be determined who died first, any will you leave would determine the disposition of your property.

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Benefits of a Will

You may have reasons for not wanting to own property jointly with another individual. You may want to mortgage or sell property that is not your homestead without the consent or authorization from another person. Making a will ensures that solely-owned property will go to your chosen beneficiary after your death without having to manage your property with them during your lifetime.

Issues With Probating a Will

If you were in debt to many creditors at the time of your death, then those creditors will most likely file claims against your estate when your will is filed for probate. Any property you owned that passes through a will will likely be subject to those claims until they are paid. The personal representative may find it necessary to petition the court to sell estate property to pay the debts you owed. In many states, however, if your property is held jointly with rights of survivorship and you die with judgments against you, then the survivorship provisions in the deed have priority over the judgments. Your debts cannot become a lien against the property of the survivor.

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Colorado Law: Death Without a Will

References

Related articles

Meaning of the Legal Term "Rights of Survivorship"

The term, “Rights of survivorship,” refers to a form of property ownership where two or more people -- often a husband and wife -- acquire property together with provisions in their deed that upon the death of one of them, the survivor automatically acquires the deceased co-owner's share. When property passes by survivorship, there is no need to probate a will to transfer ownership.

Tenants in Common in a Will

When title to property -- usually real estate -- is held by tenants in common, each of those tenants owns a portion of the property. The portion is a legal entity rather than a physical one. If you own property as a tenant in common, you have the right to use the entire premises, but you only actually own a percentage of its value. You can’t sell the property without the consent of the other tenant, the person you own the property with. However, you can sell your portion of the ownership, and if you pass away, your portion is an asset of your estate.

FAQs on a Last Will & Testament

A will is a document that allows you to decide who gets your property when you pass away, who is going to make sure that your beneficiaries get your property and who is going to raise your minor children in your absence, if you have any. If you die without a will, you allow the state where you resided to determine who gets everything you’ve worked for.

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