How To Create Right of Survivorship Using a Survivorship Agreement

A right of survivorship agreement passes property directly to a designated person at the time of death, allowing the survivor to avoid the probate process or the legal process of determining a deceased person’s ownership of the estate. It determines what happens to a property after one of its owners passes away and is more practical than probate in transferring the title to a property’s co-owner.

Right of survivorship can be created with community property using a right of survivorship agreement. There must be a contract between two or more people that determines each person’s simultaneous ownership of property (real and personal property) for the right of survivorship to exist.

A right of survivorship agreement is a series of official, written documents that must be filed with the proper organization. Such an agreement dictates that all community property passes to the survivor outright.

What are the types of right of survivorship agreements?

There are two types of right of survivorship circumstances:

1. The first, and most common, is “community property with right of survivorship.” This right of survivorship agreement is specifically designated under the law for married couples and is meant to be used as a way to instantly transfer property upon the death of one spouse. The idea is to make the transition for the widow/widower easier by not requiring a probate hearing with frozen assets.
2. The second type of right of survivorship agreement is “joint property with a right of survivorship.” This type of right of survivorship agreement is allowed between any unmarried people who have a partial interest in an asset. For example, if two sisters buy a house together, they can create a document that will instantly transfer the entire property to the surviving sister, should one die.
3. The third type, tenancy by the entirety, is a form of joint tenancy that applies only to married couples. Neither spouse may move the property without the other spouse’s consent. On the death of one spouse, the property passes automatically to the surviving spouse.

How do you create a right of survivorship agreement?

To create a right of survivorship agreement:

1. Verify that you live in a community property state where right of survivorship clauses are permitted. The states that follow the rules of community property as of 2010 are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
2. Make a list of what items will pass directly at the time of death through a right of survivorship agreement. Examples of property where right of survivorship applies include houses, land, bank accounts, mutual funds, vehicles and any other large investments.
3. Go to your local county reporting office and obtain two types of deeds to set up a right of survivorship agreement for real property (land and houses). The first deed needs to be a “Joint Ownership” deed. This deed will be signed by both parties, then filed with the county recording office. It dictates that the owners both own an equal, but separate share of the property. The second deed is the “Right of Survivorship” deed. Remember to choose the right kind of right of survivorship depending on your relationship with the person.
4. Fill out and sign the deeds in the presence of a notary and in the proper order then file the deeds with the county recording office.
5. Write a right of survivorship paragraph into your will for all other types of property. In order for the agreement to be legally considered a right of survivorship agreement, use the following example, and fill in the spaces as needed:
“We, ________________ and ______________, hereby bequeath all property herein listed to the surviving (either spouse or person) with this right of survivorship agreement. All property will become the property of the survivor so long as they survive the decedent by one day.”
6. List out the property after the paragraph. Provide signature lines for both parties, three witnesses and a notary.

7. To hold a real estate property in joint tenancy, you and the co-owners have to write the abbreviation for “joint tenants with the right of survivorship,” or “JTWROS,” on the official real estate deed or title. This creates a legally binding joint tenancy.

What are the alternatives to survivorship rights?

For some people, right of survivorship is not always the best idea, and they might want to make changes based on their situation. For example, if an individual would like to avoid their spouse for survivorship and transfer the property directly to their descendants. To do this, they would have to avoid deeds with the right of survivorship. Also, your spouse would need to agree.

Another example is if business partners would like to pass the property to their heirs instead of their business partner if they pass away.  They would have to work out a tenancy in common arrangement with their business partner to do this. Also, they would have to add non-survivorship stipulations to the joint tenancy contracts.

What are some warnings about survivorship rights?

– Right of survivorship agreements only apply in states who recognize them. If you are unsure of your state’s position, consult an estate planning attorney.
– A right of survivorship agreement does not protect the surviving person from creditors. If one party in the agreement has substantial debt, consult an attorney.