Last Updated April 11, 2024
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What is a Survivorship Deed?
A Survivorship Deed transfers real estate ownership to co-owners with a right of survivorship, meaning a deceased owner’s share automatically transfers to the surviving owner(s) without going through probate.
Often, married couples, domestic partners, and family members use Survivorship Deeds to ensure real estate interest automatically transfers to the right person after a co-owner dies. In this sense, it can be a powerful estate planning tool.
A Survivorship Deed is also known as a:
- Right of survivorship deed
- Joint tenancy deed
- Deed with survivorship
Parties to a Survivorship Deed
The parties involved in a Survivorship Deed are as follows:
- A grantor is a person whose name is currently on the property's title. There can be multiple grantors if more than one person is on the title.
- A grantee is a person receiving property ownership. A Survivorship Deed will always include multiple grantees.
Important: A person can be both a grantor and a grantee.
For example, if Jordan marries Alex and wants to add him to the property title with a Survivorship Deed, Jordan is the grantor, and Jordan and Alex are the grantees. |
How does a Survivorship Deed work?
A Survivorship Deed works as follows:
- The grantor creates, signs, and notarizes the Survivorship Deed.
- The grantor delivers the deed to the grantee(s).
- The grantees file the deed with the county recorder’s office.
- Each grantee now owns an equal share of the property. The shares are not distinct, so they cannot be transferred to anyone else (such as by sale or in a Will).
- When one grantee passes away, their share is equally divided among the remaining grantees, avoiding the probate process.
- The last living grantee will own 100% of the property.
If a grantor is married, LawDepot's Survivorship Deed template requires their spouse to sign the deed too.
A Survivorship Deed must be filed to create a public record of the property owners’ interest so that others cannot claim ownership interest. The grantees should file it with the county recorder's office in the jurisdiction where the property is located.
When to use a Survivorship Deed
A Survivorship Deed may be useful in the following situations:
Adding one or more people to a property title
Using a Survivorship Deed to add someone to a property title is an effective way to establish co-ownership and secure the right of survivorship.
For example, suppose Susan and Henry get married. Susan owns a house that she bought before meeting Henry. She wants to own the house with Henry. To make him an equal co-owner and ensure they’ll automatically inherit each other’s share if one of them passes away, Susan can use a Survivorship Deed.
A Survivorship Deed can add anyone to a title, whether it’s a spouse, domestic partner, adult child, relative, or friend.
Gifting real estate to multiple people
A grantor can use a Survivorship Deed to give up their entire ownership interest and gift real estate to multiple people.
For example, suppose an elderly parent owns a vacation cabin and wants to pass it along to their children. The parent wants to ensure the cabin stays in the family. To make their children co-owners with the right of survivorship, the parent can use a Survivorship Deed.
Buying or selling real estate
A Survivorship Deed could be used when buying or selling real estate. However, using this type of deed makes the most sense when the buyer and seller are family.
For example, suppose you and your spouse want to buy your father’s farm. Having your father use a Survivorship Deed to transfer ownership, instead of a Quitclaim Deed, will ensure you and your spouse both have the right of survivorship.
How do you get a Survivorship Deed?
The easiest way to get a Survivorship Deed is by using a template. LawDepot’s template ensures your deed is customized for your state.
By using our Survivorship Deed template, you’ll need to provide the following information:
1. Provide property details
Specify where the real estate property is located and whether it’s residential, commercial, or undeveloped land. Then, provide the property’s legal land description.
Depending on which state the property is located in, you may have to provide the property’s parcel ID number, prior deed details, and other information.
2. Provide party details
As the grantor, provide your full name, address, and marital status. If you’re married, you must also provide your spouse’s name and have them sign the Survivorship Deed.
Also, provide all grantees' full names, addresses, and marital statuses.
3. Establish consideration
To be a binding transaction, each party must exchange something of value (i.e., consideration). To complete your deed, state the consideration of the transaction.
If the property is being sold, provide the sale price. If the property is being transferred as a gift or for a nominal amount, then use $10.00 as the sale price.
4. Provide tax details
You may have to state the address where the property’s tax notices should be sent. Also, you may have to state how outstanding taxes will be paid (e.g., by one or both parties).
5. Choose an ownership type
When using our template, we’ll ask you which ownership type you want to establish. Depending on the state where the property is located, you’ll be able to choose one of the following options:
- Joint tenancy with right of survivorship (JTROS)
- Community property with right of survivorship
- Tenancy by the entirety
What types of ownership can a Survivorship Deed establish?
Let’s break down the various ownership types. With all three types, a deceased co-owner’s share automatically passes to the surviving owners without going through probate.
| Note: Each state has different practices that dictate the types of ownership you can establish with your Survivorship Deed. |
Type #1: Joint tenancy with right of survivorship (JTROS)
Joint tenancy with right of survivorship (JTROS) means multiple people share equal ownership of the property. The joint tenants can be married and non-married couples, relatives, friends, or business associates.
This type of ownership does not protect each owner from the other's liabilities. For example, if one owner goes bankrupt, creditors could force the sale of the property to get their share.
Community property with right of survivorship is only available to spouses. This type of ownership means each spouse owns 50% of the property and any debts they may have incurred. At death, the surviving spouse will automatically receive the other's share.
Community property ownership provides fewer protections to each owner than a tenancy by the entirety.
Type #3: Tenancy by the entirety
Tenancy by the entirety is only available to spouses. This type of ownership means all money earned and any debts incurred are shared equally. At death, the surviving spouse will automatically receive the other's share.
Under a tenancy by the entirety, one spouse cannot dispose of property without the other spouse's permission.
Can a Survivorship Deed be changed?
A Survivorship Deed can be changed or revoked, but it typically requires the consent of all co-owners involved. Changing or revoking a Survivorship Deed usually involves creating a new deed with different terms or ownership arrangements.
If all co-owners decide to sell the property, this would involve the termination of the Survivorship Deed, as the co-ownership structure would change when the property is sold.
Can a Survivorship Deed be contested?
Yes, a Survivorship Deed could be contested under specific circumstances. But don’t let that scare you from using one. By executing a Survivorship Deed properly, you significantly lower the chances of it being contested.
Here are some common grounds on which a Survivorship Deed could be contested:
- Lack of capacity, meaning the grantor wasn’t of sound mind or lacked the mental capacity upon signing
- Undue influence, meaning someone exerted significant pressure or coercion on the grantor to sign the deed against their true intentions
- Forgery or fraud, meaning the deed was forged, altered, or created through fraudulent means
- Duress, meaning the grantor signed the Survivorship Deed under duress or threats of physical harm
- Improper execution, meaning the deed doesn’t meet legal requirements or wasn’t properly signed, witnessed, or notarized
If you believe you have a valid reason to contest a Survivorship Deed, it's advisable to talk to a lawyer.
Does a Survivorship Deed need to be notarized?
Yes, Survivorship Deeds need to be notarized. Consider using LawDepot’s Online Notary. It allows you to connect with a notary public over the internet using your device’s camera and microphone instead of physically meeting them.
Besides notarization, having grantees sign a statement confirming that they have received the deed can be a good idea.
