In the course of my work in Estate and Trust Administration, I often encounter the misconception that real estate owned jointly among spouses contains a right of survivorship. As a result, I see property end up in probate and the estate burdened with time-consuming and costly hassles that could have been avoided.

A right of survivorship is not conferred automatically to joint owners or joint tenants through a general warranty deed. This right is created only by specific wording on the deed itself and is more commonly seen is what is known as a survivorship deed.

While this nuance of property law is lost on many, it is not lost on a probate judge. Spouses, or other joint owners of property, each own an undivided one-half interest in that property. When one spouse dies, that half interest does not automatically pass to the other spouse unless a right of survivorship is granted within the deed. This means that in order for the surviving spouse to get clear title to the entire property, the deceased spouse’s half must go through probate. This can take months and add thousands in unnecessary expense.

The hassle of probate can easily be avoided by placing the property into a trust or with a properly drafted survivorship deed. It is important to seek the counsel of an Elder Law Attorney to explore these options.