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A right of survivorship is a legal concept applied to the co-ownership of property, usually with respect to real estate and financial accounts. Property co-owned under rights of survivorship do not pass to the estate of the decedent but to the other surviving co-owners. Property co-owned under rights of survivorship can also be called joint tenancy with rights of survivorship.
The Four Unities
To create a joint tenancy with rights of survivorship, words of survivorship must be expressly stated in the document. Rights of survivorship are never implied. Survivorship language must appear in the document.
In addition, four unities must appear: unity of interest, unity of title, unity of time, and unity of possession.
Unity of Interest
In a joint tenancy with rights of survivorship, unity of interest refers to the equal and undivided ownership interest each co-owner holds. All joint tenants with rights of survivorship own equal interests, even if the financial contributions are different. This is in direct contrast to a tenancy-in-common form of co-ownership where, not only the interest passes to the decedent’s estate but, tenants-in-common may have different percentage interests depending on their contributions.
Unity of Time
Joint tenancy with rights of survivorship must be created at the same time with respect to all the joint tenants/co-owners. This means that the joint tenancy with rights of survivorship must originate from the same transaction or document. If an alleged joint tenant is added on after the joint tenancy was created, there can be no joint tenancy as to that person.
Unity of Title
Corollary to unity of time, the creation of the joint tenancy with rights of survivorship must also be done in the same title or document, usually the same deed or legal instrument.
Unity of Possession
Lastly, in unity of possession, all joint tenants have the equal right to possess, use, and enjoy the entire property as if they own the entire property. Possession cannot be limited to a specific portion of the property.
The four unities must be present at the time the joint tenancy with rights of survivorship is created and throughout the duration of its existence. Otherwise, the disruption of one of the four unities can cause the severance of the joint tenancy and its conversion into tenancy in common, which does not have the right of survivorship.
For example, in cases of financial accounts, even if the account statements say that it is a joint tenancy with rights of survivorship among three owners, but the original signature card creating the account only stated joint tenancy with rights of survivorship between two owners, the addition of a third owner in the account does not create rights of survivorship. It can be argued that as to the third owner, there was only tenancy in common.
Terminating a Right of Survivorship
With respect to real estate, there are three ways of terminating a right of survivorship: selling your interest, filing an action for partition, and by mutual agreement.
With respect to financial accounts, the process of terminating a right of survivorship account involves the consent of all the account holders in closing and reopening the account. Generally, one joint tenant may transfer most, if not all, of the funds to another account, but this transfer may be questioned by the other joint tenants in court.
Main Purpose of Owning Property Under Joint Tenancy with Rights of Survivorship
One of the main reasons people co-own property with rights of survivorship is the avoidance of probate. Generally, real property can only be transferred via probate proceedings after the death of the owner. However, when survivorship language appears in the deed, real property can be transferred to the surviving co-owners through the submission of an affidavit of the surviving co-owners and the death certificate of the deceased co-owner. A simplified process is used when transferring real property after death in joint tenancy with rights of survivorship.
Joint tenancy with rights of survivorship is commonly used among parents and their children. The parents pay for the property entirely, but the children are included in the deed as joint tenants with rights of survivorship, thus giving an interest in the property to the children that cannot be revoked without unanimous consent of all joint tenants. This could give rise to complications, especially when conflicts arise between the parents and children.
Most estate planning lawyers, nowadays, recommend the use of revocable trusts. Although it is more expensive than a survivorship deed, a revocable trust avoids probate but does not vest property interest upon the children during the lifetime of the parent.
A transfer on death deed also has the same effect as a survivorship deed in terms of avoiding probate, but does not vest interest on the beneficiary until the death of the owner. This means a transfer on death deed is revocable without the beneficiary’s consent during the lifetime of the owner.
Should you need assistance in drafting survivorship or TOD deeds or establishing revocable trusts, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
