What is a Survivorship Deed?

A survivorship deed is a deed that transfers real estate from grantor to grantees, with the grantees having the rights of joint tenants with rights of survivorship. A survivorship deed, in order to be considered as such, must contain words of survivorship. Otherwise, the presumption is that the grantees take the property as tenants-in-common, unless the grantees are married to each other (in which case they take the property as tenants-by-the-entirety, even in the absence of survivorship language).

Joint Tenancy with Rights of Survivorship

Joint tenancy with rights of survivorship (JTWROS) is a form of ownership among two or more co-owners, holding equal interests in the property. This type of co-ownership can be found in bank accounts, investment accounts, real estate, and other forms of property. In JTWROS, when one of the joint tenants dies, his share passes to the surviving joint tenants without need of probate instead of the deceased joint tenant’s estate. For this reason, survivorship deeds with JTWROS have been popularly used for transferring real estate between parent and child in order to avoid probate.

Key Features of JTWROS in a Survivorship Deed

Words of Survivorship. The most important part in creating a survivorship deed is to ensure that such deed contains words of survivorship. Examples of these words which you can see in survivorship deeds are “joint tenants with rights of survivorship” or “with rights of survivorship.” The words “joint tenants” alone cannot create a survivorship interest without survivorship language. Generally, any words used are fine for as long as it is expressly stated in the deed itself that the co-owners are taking the property with rights of survivorship.

Unity of Time, Title, Interest and Possession. To establish JTWROS, there must be unity of time, title, interest, and possession. The co-owners must take ownership and possession over the property at the same time, using the same deed, and with the same equal ownership interest. When a co-owner’s name is simply added later on after the initial survivorship deed, as to that co-owner, there can be no survivorship due to the lack of the four unities.

Avoids Probate. A survivorship deed avoids the need for such property to pass through probate. Most families have their house as the main property to pass on to their kids. A survivorship deed avoids their children from having to pay lawyers to establish an estate that can transfer the house to their children, post-death.

No Will Override. A survivorship deed trumps the will. If the will passes on property that is subject of a survivorship deed, the survivorship deed will prevail. The provision in the will passing such property will be considered to have adeemed. The provision in the will cannot be fulfilled because the property is no longer part of the testator’s probate estate.

Consequences of Survivorship

One of the major consequences of survivorship deeds is the fact that property passes through the joint tenant without need of probate. Usually, this transfer is made by the simple submission of a death certificate of the deceased joint tenant and an affidavit of the surviving joint tenants, among others, to the county recorder.

Survivorship deeds are regularly used between parents and children. This, however, can create complications when some children are omitted as joint tenants. It is a common occurrence for omitted children to contest a survivorship deed based on the parent’s lack of capacity, undue influence, fraud, mistake, or improper execution of the deed.

Grounds in Contesting a Survivorship Deed

The grounds used to contest a survivorship deed are similar to the grounds used in contesting a will: lack of capacity, undue influence, improper execution, and fraud. Sometimes, one can use a combination of different grounds in contesting a survivorship deed. A litigation lawyer will be able to assist you in analyzing your case to determine the best grounds you can raise, depending on your unique circumstances.

Grantor’s Lack of Capacity in Executing a Survivorship Deed

One of the most common reasons for contesting a survivorship deed is lack of capacity. Lack of capacity or diminished capacity is often used in conjunction with undue influence.

Most grantors who transfer properties to their family members using survivorship deed are older people whose only property is their house and prefer to avoid probate in the transfer of property to their children. When the transfer through survivorship deed is made to only one family member, to the exclusion of the other family members, the excluded ones usually contest the transfer on the ground of the grantor’s old age and lack of capacity.

Lack of capacity is usually proven through the grantor’s medical records, witness testimony who had regular contact with the grantor at or about the time the life estate deed was executed, expert testimony who can evaluate the grantor’s medical records to show lack or diminished capacity, and other documentary evidence such as letters, emails, and other written communication that show the grantor’s confusion and cognitive decline.

Undue Influence Exerted Upon Grantor

Undue influence is usually raised together with the grantor’s diminished capacity. Even if the grantor did not completely lack capacity, a diminished capacity on the part of the grantor makes the grantor more prone and vulnerable to the exertion of undue influence.

Undue influence requires three elements: motive, opportunity to exercise undue influence, and the actual exercise of undue influence. Motive is shown when the one exerting undue influence is a joint tenant in the survivorship deed. The opportunity to exercise undue influence is usually reflected through the joint tenant’s close proximity towards the grantor, frequent interactions or control over the grantor’s affairs. The actual exercise of undue influence is shown through the influencer-joint tenant’s overt actions of manipulation, control, or coercion upon the grantor.

Usually, when there is a relationship of trust and confidence between the grantor and the joint tenant, i.e., a fiduciary relationship under a POA, attorney-client relationship, caregiver-patient relationship, the burden of proof is reversed and the influencer has to show that there was no undue influence.

When the grantor is in a more vulnerable state, i.e., taking mind-altering medication, is physically dependent upon another person for support, etc., the possibility of undue influence becomes greater.

To support a claim of undue influence, evidence such as witness testimony from people who had regular contact with the grantor at the time the life estate deed was executed (including the attorney-draftsperson), medical and psychological evaluation documents of the grantor, and other relevant documents can be presented.

Improper Execution as a Ground for Contesting a Deed

Through rare, improper execution can also be a ground for contesting a survivorship deed.

In New York, a survivorship deed must be written and signed by the grantor. Its language must state that the grantor is transferring the property to the grantees under rights of survivorship. What is important is the intent of the grantor, through the language of the deed, to create a joint tenancy with rights of survivorship. Usually, the grantees are the grantor and the grantor’s child.

The survivorship deed must also be notarized and recorded with the county clerk’s office where the property is located.

In the absence of any of the above, the deed may be contested on the ground of improper execution.

Fraud or Duress as a Ground to Contest a Deed

Fraud and duress are both grounds to contest a life estate deed in New York. Though they appear similar, they are in fact different.

Fraud is the intentional or deceitful misrepresentation of fact that leads the grantor to rely on such fact as basis for making the decision to create a survivorship deed. Duress, on the other hand, refers to situation where the grantor is coerced due to threat of harm or economic consequence to create the survivorship deed.

In the case of fraud:

• There must be a false misrepresentation or omission of a material fact.
• The person making such misrepresentation or omission has knowledge of such falsity.
• The misrepresentation or omission was made with intent to deceive.
• The person who was misled relied on such material misrepresentation or omission of fact in making the decision.

In the case of duress:

• There must be a form of threat, intimidation or coercion upon the grantor, depriving them of their free will.
• The threat must involve an immediate or impending harm to the grantor or his loved ones.
• The grantor must perceive that there is no other reasonable alternative but to comply with the duress or coercion.

Contesting a survivorship deed in New York requires the filing of a complaint. Aside from the grounds and evidence to contest a survivorship deed, many other factors come into play such as the time period in filing the complaint for purposes of the statute of limitations. A qualified New York lawyer will be able to assist you in analyzing your case. Should you need assistance, 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].