How To Create Right of Survivorship Using a Survivorship Agreement

A right of survivorship agreement passes property directly to a designated person at the time of death, allowing the survivor to avoid probate. Right of survivorship can be created with community property using a right of survivorship agreement.  A right of survivorship agreement is a series of official, written documents that must be filed with the proper organization. Such an agreement dictates that all community property passes to the survivor outright.

Types of Right of Survivorship Agreements

There are two types of right of survivorship circumstances:

  1. The first, and most common, is “community property with right of survivorship.” This right of survivorship agreement is specifically designated under the law for married couples, and is meant to be used as a way to instantly transfer property upon the death of one spouse. The idea is to make the transition for the widow/widower easier by not requiring a probate hearing with frozen assets.
  2. The second type of right of survivorship agreement is “joint property with a right of survivorship.” This type of right of survivorship agreement is allowed between any unmarried people who have a partial interest in an asset. For example, if two sisters buy a house together, they can create a document that will instantly transfer the entire property to the surviving sister, should one die.

Creating a Right of Survivorship Agreement

To create a right of survivorship agreement:

1. Verify that you live in a community property state where right of survivorship clauses are permitted. The states that follow the rules of community property as of 2010 are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
2. Make a list of what items will pass directly at the time of death through a right of survivorship agreement. Examples of property where right of survivorship applies include houses, land, bank accounts, mutual funds, vehicles and any other large investments.
3. Go to your local county reporting office and obtain two types of deeds to set up a right of survivorship agreement for real property (land and houses). The first deed needs to be a “Joint Ownership” deed. This deed will be signed by both parties, then filed with the county recording office. It dictates that the owners both own an equal, but separate share of the property. The second deed is the “Right of Survivorship” deed. Remember to choose the right kind of right of survivorship depending on your relationship with the person.
4. Fill out and sign the deeds in the presence of a notary and in the proper order then file the deeds with the county recording office.
5. Write a right of survivorship paragraph into your will for all other types of property. In order for the agreement to be legally considered a right of survivorship agreement, use the following example, and fill in the spaces as needed:
“We, ________________ and ______________, hereby bequeath all property herein listed to the surviving (either spouse or person) with this right of survivorship agreement. All property will become the property of the survivor so long as they survive the decedent by one day.”
6. List out the property after the paragraph. Provide signature lines for both parties, three witnesses and a notary.

Warnings about Rights of Survivorship

- Right of survivorship agreements only apply in states who recognize them. If you are unsure of your state’s position, consult an estate planning attorney.
- A right of survivorship agreement does not protect the surviving person from creditors. If one party in the agreement has substantial debt, consult an attorney.