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Survivorship

DEFINITION

Term that describes whom the property belongs to after a co-owner of a property dies.

EXPLANATION

The right of survivorship transfers a joint tenant’s share in real property to the other tenant(s) in the joint tenancy upon a joint tenant’s death.

Therefore, a joint tenancy property is not transferred to an heir through a will or intestate succession upon the joint tenant’s death. Rather, a joint tenant’s interest in a property terminates upon his or her death. In the case of a joint tenancy with two owners, the surviving tenant holds absolute possession of the property.

For example, say Brett, Marissa, and Phil own a joint tenancy property. If Brett dies, Brett’s family receives no interest in the property. Rather, Marissa and Phil continue on as joint tenants. If Marissa then passes away, Marissa’s family also does not receive any interest in the property. Instead, Phil now owns an undivided interest in the property and becomes the owner in severalty.

Corporations cannot own property in joint tenancy. This is because corporations outlast human life, therefore, conflicting with a joint tenancy’s right of survivorship.

A joint tenancy is typically not subject to probate because the terms of a deceased party’s estate do not apply. However, the surviving joint tenant must submit an affidavit of death for the deceased tenant in order to transfer title.

The surviving joint tenant is not liable for the debts of the deceased joint tenant, even if the deceased tenant used the property for securing a debt. If, however, a living joint tenant falls behind on debt payments, creditors may be able to force an execution sale to recoup both unpaid debts. If an execution sale is completed, the joint tenancy terminates.

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