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If a deed is in surviving tenants by the entirety can the real estate to left to another in a will?

Westhampton, NY |

If there is a deed to a house in the son and father's name as tenants with rights of survivorship but the father's will leaves all real estate to both the son and a daughter is the daughter entitled to a portion of the real estate even though the deed was in both the son and father as surviving tenants with rights of survivorship?

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Attorney answers 6

Posted

No.

Posted

Provided that the son survived the father and the deed is legitimate, upon the father's death the property would vest automatically into the son (provided title is held as joint tenants with the rights of survivorship). Accordingly the daughter would get nothing.

Note: This response is for general informational purposes only. No attorney-client relationship is created. No responsiblity shall be taken by the submitting attorney for any individuals acting pursuant to any information contained herein.

Posted

No, will only deals with items in his estate. The deed transfers the property outside of the estate, by right of survivorship.

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Posted

The question refers to two different types or forms of "survivorship" ownership of assets-survivorship results in the transfer of ownership to the surviving owner when one of several owners of the asset dies. Survivorship is a will substitute--instead of the will the property becomes owned by "operation of law" (in effect automatically) by the individual on the deed who lives longer and outlives the other who has passed away. If the owners on the deed which provides for transfer to the surviving deed owner are married husband and wife (or h&h, or w & w under New York law), it is a "tenants by the entirety" survivorship deed. If the individual owners are not married, the deed is a "joint tenancy with right of survivorship" deed. Both of these forms of survivorship effectively "trump" or override anything that is said about the property in a will by either joint owner. Unless the joint tenancy relationship was caused by undue influence or improper acts to end run the will but that is a very hard thing to prove. Anyone involved in such issues must consult with an attorney

This answer does not constitute legal advice in any form ; you have to meet and consult with an attorney on this matter.

Posted

If dad has passed already, I agree with the other answering attorneys that the son has full ownership. If dad has not yet passed, get him to consult an attorney so that his intent can be realized after his passing.

I am an Ohio-licensed attorney. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting me does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised. kmatre@matrelaw.com

Posted

By operation of law, upon the death of one of the owners where title is held as tenants the right of survivorship, the title passes to the surviving tenant(s) - outside the estate. This means the will has no bearing on the real property.