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The legal options for how property may be titled, or held, when more than one person has rights to the property will vary among the different legal systems throughout the world. One option found within most common law legal systems is to provide for the right of survivorship to the property. When property is held with this right, the death of one its owners means that it passes directly to the remaining owners.
In the United States, real property may be titled in a number of ways when more than one person has rights to it. When a married couple purchases property, they frequently title the property as joint tenants with right of survivorship. By titling the property in this manner, if one spouse dies, the interest in the property that was held by the deceased spouse will automatically pass directly to the surviving spouse, thereby avoiding probate.
Probate is the legal process by which property of a decedent is accounted for and passed down to the beneficiaries upon the decedent's death. Probate is generally required in order to pass the title to property held by the decedent. The process can take months or even years to complete, which can create a number of practical problems for the spouse if all the property jointly held by the couple must pass through probate.
The right of survivorship may be found in the way real property is titled, as well as other types of property, such as bank accounts. When a bank account is opened with two or more signatories, establishing this right means that, if one of the owners of the account dies, the rights to the account pass directly to the other owners.
Aside from avoiding the often lengthy process of probate, the other advantage of titling property in this way is that it often takes precedence over other claims to the property. If, for instance, a creditor would otherwise have the right to attach a lien to the property as a result of a debt owed by one of the owners, if the property is titled with a right of survivorship, then the property passes directly to the remaining owner upon the death of the decedent. Because of this, the creditor does not have a legal right or opportunity to attach a lien to the property.
@indemnifyme - It's smart to plan out stuff like right of survivorship well in advance.
I've seen a few older members of my family go through problems with probate after their spouses passed away. Trust me, it's not pretty. The surviving spouse is already completely devastated, and then having to deal with the court is pretty much a nightmare. I wouldn't wish that on anyone!
I am really glad I stumbled on this article. My boyfriend and I are thinking about getting married and eventually buying a home. I have no idea that joint marital property could go through probate if there isn't a provision for right of survivorship.
Whenever we do get the money together to buy a house, I'm going to make sure we take care of this. I find that most times, careful planning prevents problems down the road. I think this would definitely be one of those instances.
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