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What Is a Survivorship Deed?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 15 April 2014
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A survivorship deed is a deed in which property is put in the names of two or more people and when one person dies, his or her interest in the property is automatically assigned to the other person or persons on the deed. This is designed to avoid some of the entanglements of probate and to smooth the transfer of assets after someone's death. Eventually, only one person, the survivor, will be left, and this individual will own the property in full.

The most common situation in which a survivorship deed is used is when a couple buys a piece of real estate together. When the title is transferred, a survivorship deed is created so that in the event that one partner dies, that person's share will go to the other partner. More rarely, survivorship deeds are used by parents and children, siblings, or people in other relationships.

If people have interests in a survivorship deed and they divorce, the divorce decree can include language which will specify what happens with the deed. This type of deed can also be redrawn in the event of changes in a relationship, by consent of all parties. Once someone has sole title, that person can choose to sell, grant, or gift the property to someone else and has full rights to transfer the deed.

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The people named on a survivorship deed share equal interests and liability as long as they live. When someone dies, any liabilities do not die with that person. Depending on the laws in the region where the deed originates, the decedent's estate may be responsible for covering the liabilities, or the liabilities may devolve to the other people on the deed. It is advisable to get information about what would happen in this situation before someone dies, so that those named on the deed can be prepared.

Before drafting a survivorship deed, people should make sure that it is the kind of deed they want. Once the deed has been drafted, it can be difficult to reverse or alter because everyone must consent to any changes and people named on the deed may not consent to a change. There may be arguments for or against creating that kind of relationship on a deed, and there may be reasons for limiting or changing the nature of someone's interest in a property. A lawyer can provide advice specific to the situation, including suggestions for alternate ways of drafting the deed which might be more appropriate for the given situation.

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dudewarrior
Post 7

Also, last November in Maryland, question 4 let us vote on the qualifications of judges appointed to the Orphan (estate) Court. This begs my question and a proposal for a new bill to be put to a vote: Why can any kind of lawyer be able to write a deed in Maryland? It should only be a lawyer who specializes in estates, deeds, and estate planning who can write a deed.

It was a retired judge who specialized in "tax law" when he was a lawyer who botched my grandmother's deed to survivorship among siblings, also according to my late mother, the same judge/lawyer wrote my grandmother's will 12 years earlier that stated that the house be divided "share and share alike" among the siblings. At the time my grandmother signed the botched deed, she had short term and long term memory loss and was also mentally incompetent.

The lawyers now say that the botched deed "trumps the will", so combine this with probate attaching itself to wills and ask yourself why bother having a will? Also in my county, I believe the majority of deeds are written to survivorship among siblings because of a "divide and conquer" scam because of college rentals. Three siblings who all have to sign to sell a house are less likely to sell compared to one surviving sibling owning 100 percent with 100 percent control to sell.

Lastly, when a deed (contract) is written, only the parent (grantor) giving the property to their children has to sign it. Why don't the children (grantees) all have to sign it, too? Maybe they don't want the share of the property (and the responsibility of maintenance, taxes, nursing home liens) for themselves and other encumbrances usually warranted against when deed is written?

In this day and age where people have to sign to accept small things like free cell phones and have to sign to accept agreements of policies on websites, why don't they have to sign to accept something as huge as a house and the crap that goes along with it? This is a violation of our rights (privacy act) Maryland real estate laws are outdated and need changed.

dudewarrior
Post 6

@anon318930: I am not a real estate lawyer, but from my experience living in Maryland, since both parents passed, the house could pass through a will if there was a will. Be careful because of probate. Ed Slott says probate could take 90 to 100 percent of the house equity. A lawyer will advise you (and your siblings) to open an estate for one or both of your late parents. This is how it would be tracked for probate and you may not have a choice, because a lawyer would have to write a new deed. Also as far as federal income tax goes, one of the new owners would have to live in the house for at least two years to avoid federal income tax. A lawyer may also advise that the new deed be written as joint tenants with right of survivorship among siblings and this is a scam. You want the new deed to be written with joint tenants in common, because probably, the youngest sibling will live the longest and inherit 100 percent of the house after the older siblings die, hence not dividing the share equally and not being able to pass to each individual sibling's family after they die.

In my case, the youngest sibling washed her hands of all responsibilities to her mother with dementia, then swooped in after her older siblings died and not only claimed 100 percent of the house my family maintained and payed the taxes on for 30 years, but also seized the thousands of dollars in items left behind paid for by the older siblings. Be careful in Maryland. I had six lawyers lie to my mother and me for 12 years to uphold this scam of survivorship among siblings. Also, the lawyers refused to tell us that we could separate the survivorship deed through an instrument called Petition of Partition, so if anyone in Maryland finds themselves single-handedly taking care of and financially supporting their parents with a survivorship deed among their siblings hanging over their head, find a lawyer and ask them about Petition of Partition to put the deed to tenants in common. If you can't find a lawyer who will help, take a copy of your deed to your circuit court with a copy of the petition of partition law: Md. Rule 6-444 from Michie's Annotated Code of Maryland. Hope this helps.

Also, if we can get tenants with survivorship abolished in Maryland, it will not affect same sex marriages which were passed by vote last November. Survivorship among spouses is called Deed by Entirety and it is also recognized in Maryland for straight and now same sex couples.

In states like Florida and West Virginia, survivorship is not recognized unless it is between spouses (entirety). Survivorship among siblings and strangers, for that matter, was English common law and changed by Florida as early as 1941. This is not England and it is not the 1800s anymore.

anon318930
Post 5

The deed to my father's house in Maryland is in his and my mother's name. She died some time ago and he recently passed. We had asked for years that he put one of the children on the deed, but he didn't. Since both the people listed on the deed are passed, what does that mean for the house? We'd like to have it deeded to one of the children.

dudewarrior
Post 4

I thought our country was the United States of America, not the Divided States of America. I live in Maryland where JWTROS on a deed can be held by siblings. I have recently found out that in Florida, JWTROS on a deed can not be held by anyone but spouses. My question is there an easy way to find out how many of our fifty states allows JWTROS among people who are not spouses?

cupcake15
Post 3

@SailorJerry- Wow that is complicated. Maybe if the state in which your brother and his significant other resides allow a civil union or a same-sex marriage to be valid then that might offer them some protection regarding rights of surviorship.

Most married couples that buy a property together have a right of survivorship deed automatically. I read that if the surviving spouse dies then the only way to avoid probate is to have a revocable living trust. This is another idea that your brother can try, but I guess he will have to see an estate attorney to be sure.

I plan on having a revocable living trust so that when my husband and I die my children would be able to inherit our assets without having to go to probate court. I think that will simplify these estate matters which can be made to be more complicated than they need to be.

MissDaphne
Post 2

@SailorJerry - State laws and how they're interpreted vary, so your brother and his partner might want to consult a local real estate broker or lawyer. But in general, yes, they should be able to do a joint tenancy with right of survivorship if that's what they want. (Some people buy a house together but don't want survivorship; maybe they have kids from previous marriages to whom they want to leave their share in the property.)

I would be cautious if I lived in Virginia, though. I've read some articles about Virginia's gay marriage law. It prevents gay couples from using contracts to establish the rights and obligations of marriage. I don't know if it's ever happened, but it seems possible that one gay partner could die and his heirs could sue the surviving partner for his share in the house based on that law, saying that they did not have the right to establish a marriage-like ownership of their house.

SailorJerry
Post 1

Do you have to be married to get a joint survivorship deed? My brother is in a same-sex partnership and has been talking about buying a house with his significant other. Will they be able to have the same kind of mortgage as a married couple would?

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