Assets you own at the time of your death typically pass to your heirs or beneficiaries, either according to your will or, if you did not leave a will, according to state laws. This may require a lengthy probate procedure.
Assets you own at the time of your death typically pass to your heirs or beneficiaries, either according to your will or, if you did not leave a will, according to state laws. This may require a lengthy probate procedure. However, with proper planning, you can pass many of your jointly owned assets directly to the co-owners -- bypassing probate -- by creating rights of survivorship according to Texas law.
Rights of Survivorship
Rights of survivorship are typically created by an asset's ownership documents. For example, if two co-owners of a piece of land create rights of survivorship between them, either co-owner will inherit the entire piece of property when the other co-owner dies. This direct transfer of ownership happens outside the terms of a will or probate procedure. Generally, the surviving co-owner must simply provide proof of death, such as a death certificate, to receive title of the entire property. Texas allows rights of survivorship for many assets, including bank accounts, vehicles and real estate.
Right to Survivorship Not Presumed
Historically, courts presumed that a right of survivorship was included in all jointly owned real estate, but many states, including Texas, have passed laws reversing this presumption. Thus, in Texas, all co-owners of real estate do not automatically have a right of survivorship. Instead, co-owners are presumed to be tenants in common -- a form of joint ownership that does not have a right of survivorship -- unless a surviving co-owner can prove the deceased co-owner intended to create a right of survivorship. Joint ownership, by itself, is not enough to prove the deceased intended to create a right of survivorship.
Titles to Property
To give rights of survivorship, co-owners must overcome Texas' presumption that joint property owners are tenants in common. Tenants in common can will their share of property to others, but it doesn't pass automatically to the other joint owners. One way to create a right of survivorship is by clearly stating in the title, deed or other asset ownership documents that the co-owners intend to give each other the right of survivorship. For example, a brother and sister who buy a piece of farmland together specifically state in the deed at the time of purchase that they hold the property as joint tenants with rights of survivorship. If the brother later dies, the sister will become the sole owner of the property automatically.
Agreements Outside Title
Though co-owners can establish rights of survivorship in a title or deed, Texas does not require co-owners to specify rights of survivorship at the time they purchase the asset. Instead, state law also allows co-owners to create a separate document later to establish those rights. However, like statements in the title of an asset, these later-created survivorship agreements must clearly state that the co-owners intend to establish a right of survivorship. This type of agreement can be particularly helpful for spouses looking to automatically pass full ownership of their community property to the surviving spouse when one spouse dies.
- Texas Constitution and Statutes: Probate Code: Chapter XI Nontestamentary Transfers
- Texas A&M University: The Real Estate Center: Right of Survivorship
- Pursley Law Firm: Real Estate Probate Texas
- Russell W. Hall & Associates PC: Survivorship Ownership Agreements
- David J. Willis: Co-Ownership of Property in Texas
- Jupiterimages/Brand X Pictures/Getty Images