How to Remove Right of Survivorship from a Deed
Right of survivorship is a crucial element in joint ownership, dictating that when one owner dies, their share automatically transfers to the surviving owner(s). Understanding how to remove this right is vital if you want to ensure your estate plan reflects your wishes and avoid unintended consequences. This process varies depending on your location and the specifics of your deed, so consulting with a real estate attorney is highly recommended. This article provides a general overview of the process, but it's not a substitute for legal advice.
Understanding Right of Survivorship
Before diving into the removal process, let's clarify what right of survivorship entails. In a joint tenancy with right of survivorship, the property ownership is undivided. This means each owner possesses the entire property, not just a specific share. Upon the death of one owner, their interest automatically vests in the surviving owner(s), bypassing the probate process. This is different from tenancy in common, where each owner has a distinct share and their portion passes to their heirs according to their will.
Why Remove Right of Survivorship?
There are several reasons why you might want to remove the right of survivorship from your deed:
- Estate Planning: You may wish to leave your share of the property to specific beneficiaries named in your will, rather than having it automatically transfer to the surviving owner(s).
- Debt Concerns: Removing right of survivorship can protect your assets from the debts of the other owner(s).
- Divorce or Separation: In a divorce or separation, removing right of survivorship is often necessary to sever the joint ownership and allocate the property appropriately.
- Gift or Sale: You might want to gift or sell your share of the property independently.
How to Remove Right of Survivorship
The process of removing right of survivorship requires a legal instrument that modifies the existing deed. This typically involves creating a new deed that explicitly states that the property is held as a tenancy in common, thereby eliminating the right of survivorship. The exact steps may vary by state, but generally involve:
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Consult a Real Estate Attorney: This is the most crucial step. An attorney can guide you through the legal complexities, ensure the document is properly drafted, and file it with the appropriate authorities.
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Prepare a New Deed: The attorney will prepare a quitclaim deed or a warranty deed that reflects the change in ownership and removes the right of survivorship. This deed needs to accurately describe the property, list all current owners, and clearly state that the property is now held as tenancy in common.
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Execution and Notarization: All owners must sign the new deed in front of a notary public. This is essential for legal validity.
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Recording the Deed: The new deed must be filed and recorded with the county recorder's office in the county where the property is located. This officially updates the public record and legally changes the ownership status.
What if one owner refuses to cooperate?
If one owner refuses to sign the new deed, legal action may be necessary. A lawsuit to partition the property may be required to dissolve the joint tenancy. This is a more complex and potentially costly process.
Frequently Asked Questions
What is the difference between a quitclaim deed and a warranty deed?
A quitclaim deed simply transfers whatever interest the grantor has in the property, without any guarantees about the title's validity. A warranty deed provides more guarantees, promising that the grantor has the right to transfer the property and that the title is free of encumbrances. Your attorney will advise on which deed is appropriate for your situation.
How much does it cost to remove right of survivorship?
The cost varies based on location, attorney fees, recording fees, and any other associated expenses. It's best to discuss this with an attorney beforehand to get a cost estimate.
Can I do this myself without an attorney?
While it's theoretically possible, it's strongly discouraged. Real estate law is complex, and making a mistake could lead to significant legal problems. An attorney ensures the process is legally sound and protects your interests.
How long does the process take?
The timeframe depends on various factors, including the complexity of the situation and the efficiency of the county recorder's office. Expect it to take several weeks or even months.
Removing right of survivorship from a deed is a legal matter that requires careful attention to detail. While this article offers general information, always seek professional legal counsel to ensure your actions comply with applicable laws and protect your interests. A real estate attorney will provide personalized guidance based on your specific circumstances and jurisdiction.
