Does Survivorship Override the Will?

By John Cromwell

Property that is subject to right of survivorship is generally excluded from a decedent’s estate and is therefore not subject to a will. In some circumstances, however, a property loses its survivorship status and may become subject to a will. Property is governed by the laws of the state where it is located, so you should review the applicable statutes or consult with a licensed attorney.

Survivorship Defined

Survivorship is a special condition that applies to property owned by two or more people in a legal status known as “joint tenancy.” When property is held in this manner, all of the co-owners have equal rights to ownership. This means each has an equal claim to the property, and each can use it as he sees fit at any given time. These equal rights continue until one of the owners dies. At that point, the deceased person loses ownership of the property and the last surviving member of the original group owns the property outright.

Terminating Survivorship

The right of survivorship may be terminated if one of the owners sells his share. In that case, the local court would divide the property amongst the owners. The buyer would be a tenant-in-common with the remaining original owners. The buyer could still use the entirety of the property, but she has no right of survivorship and may sell her share whenever desired. The remaining original owners would still have right of survivorship over the property amongst themselves. When only one original owner remains, he would share title with the buyer as a tenant-in-common.

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Estate Defined

A will distributes a person’s estate. To determine what is in an estate, you begin by identifying what the decedent owned immediately prior to death. Then you subtract all property that is exempt from probate. Probate is a function of state law, so exemptions vary. Generally, property that is transferred through other means, such as a trust, is excluded from an estate.

Survivorship and Estates

Property that has a right of survivorship is exempt from probate, which means it is not subject to a will. This is because as soon as an owner dies, she no longer owns the property. However, if the decedent was the last surviving owner, the right of survivorship no longer applies; the property is included in her estate and distributed according to the will. Furthermore, if the decedent bought into property that was subject to a joint tenancy but she was not an original owner, the joint tenancy does not affect her ownership and her share of the property is subject to her will.

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