What Is a Survivorship Deed?

Using a survivorship deed is a legal mechanism to pass along your real estate to the property co-owners after you pass away. While commonly utilized by married couples in Ohio, survivorship deeds can also provide a smooth property transfer mechanism for others, including parents, siblings, and close friends. It is a simple and straightforward property transfer that avoids the probate process, but it may trigger some unintended consequences. Using this estate-planning tool is a choice best made with the professional guidance of an Ohio probate attorney.

The Probate Process in Ohio

Unless you have created an estate plan that specifically avoids it, your estate–such as personal property, financial accounts, and real estate–must pass through the probate process when you pass away. The process can take months to years to complete, depending on the size and complexity of your estate as well as any disputes that may arise among your heirs. One of the simplest legal tools to avoid the probate process for real property is the survivorship deed.

How a Survivorship Deed Works

A survivorship deed is a legal instrument that allows two or more people to own property together during their lifetimes. Then, when the first co-owner dies, their share of the property automatically transfers to the surviving co-owners. With this automatic transfer in place, the asset does not need to go through the probate process to change ownership; instead, the property transfer avoids any delays in probate as well as the expenses associated with probate. But there are some risks to consider before using this estate-planning tool.

Risks of Using a Survivorship Deed

While a survivorship deed can save time, money, and stress, it is not the right planning tool for every situation. Using a survivorship deed means adding a co-owner to your property during your lifetime. Adding a co-owner has an immediate impact. Two of the key risks to using a survivorship deed hinge on the power you lose and the vulnerability you gain by adding co-owners.

You Share Control of the Property with Your Co-Owners

Your co-owners gain equal rights in the property, which includes selling or refinancing the property. This means all co-owners must agree before either action can be taken. Similarly, any modification to the survivorship deed–such as to accommodate changing life circumstances like marriage or divorce–requires all co-owners to agree.

The Property Is Subject to Your Co-Owners’ Creditors

But at the same time, your co-owners’ personal circumstances, such as debt, divorce, or bankruptcy, can potentially affect the real estate. In other words, your co-owners’ creditors may threaten the property with legal actions such as attaching a lien or forcing a partition sale. Unlike some of the other estate-planning tools available, the survivorship deed does not protect your property from a co-owner’s creditors; it can actually increase your exposure during life.

Setting Up a Survivorship Deed in Ohio

Like any legal instrument, a survivorship deed must meet Ohio’s legal requirements to be effective and enforceable. A survivorship deed must specifically include language indicating that the ownership includes a right of survivorship. It is important to note that unlike some states, Ohio law does not presume that a joint tenancy between husband and wife includes a right of survivorship unless the deed includes specific language: with right of survivorship. The deed must also be properly recorded with the county recorder’s office. Working with an experienced estate planning attorney ensures your survivorship deed checks all the boxes to be fully recognized by the law.

Is a Survivorship Deed Right for Me?

A survivorship deed may be an effective estate-planning tool for a married couple, family members, or close friends who want a fast and seamless way to transfer property to trusted co-owners. But if you want to retain control over your property during your lifetime and have more control over how your property is distributed after your death, a survivorship deed might not be the best choice for you. Other estate-planning strategies–such as a trust-based estate plan, a transfer-on-death affidavit, or perhaps a carefully drafted life estate with remainder interest–may offer more flexibility and control, both during your lifetime and beyond.

Contact Gudorf Law Group Today

For help with survivorship deeds in Ohio, contact Gudorf Law Group. Our knowledgeable team helps clients create and record survivorship deeds in Ohio. If you would like to use this tool to avoid the cost and stress of probate, contact us today to schedule a consultation. We will go over the details of your estate and family situation and explain how a survivorship deed may fit into your estate plan or offer appropriate alternative strategies. Make the best choice for your loved ones with help from Gudorf Law Firm at your side.