Probate – What is the Right of Survivorship (Joint Assets)?

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Probate right of survivorship

The right of survivorship changes how executors deal with joint assets. 

The right of survivorship is a legal principle that applies to certain joint assets, meaning that they will pass automatically to the surviving owner(s), and not via the terms of the deceased’s will.  It follows too therefore that the executors can deal with that asset without needing a grant of probate.

Do all assets pass via a Will?

No, not all assets pass via our will – and certain joint assets (where the right of survivorship applies) are one such example.  Nominated assets are another (eg death in service benefits attached to employment will also invariably pass outside of your will, and without the need for a grant of probate.

What assets pass via the Right of Survivorship?

Most cash assets will pass automatically via the right of survivorship.  The most common/obvious one being a joint bank account.  Some jointly owned land will also pass automatically to surviving joint owners (see below).

Joint Tenancy or Tenants in Common?

The right of survivorship is particularly relevant to jointly owned property as there are two legal ‘types’ of joint ownership of land.

Under a joint tenancy, on the death of one owner, ownership passes automatically to the surviving owner(s).

If owned as tenants in common, the right of survivorship does NOT apply, and the executors will need to obtain probate to deal with the deceased’s share in the property.  Read more about this in our article Joint Tenancy or Tenancy in Common.  Or, watch our YouTube video on the same subject:

Are assets that pass automatically liable to IHT?

The right of survivorship does not change the Inheritance Tax (IHT) status of an asset, even though a grant of probate may not be needed to deal with it.  However, it is treated the same for the purposes of reliefs and exemptions. So for example, anything passing automatically to a surviving spouse will be free of IHT thanks to the spouse exemption.

Find out more about IHT reliefs and exemptions >

What do Executors have to do to transfer joint assets that have the Right of Survivorship?

If there are jointly owned assets in the estate to which the right of survivorship applies, they will generally be very easy to deal with.

All that is needed is for the executors to exhibit a copy of the death certificate (to the bank for example) and the deceased’s name will be removed – leaving it in the ownership of the surviving owner(s).  This negates the need for obtaining probate.  As above, this does NOT however take these assets out of the estate for the purposes of any IHT liability.

Right of Survivorship – a cautionary note

One common situation we find in practice is elderly parents making one or more of their children joint bank account holders.  On the face of it, this makes the named child(ren) joint owners.  Where in fact, the intention is simply to allow the child(ren) to help out with the admin of bill paying and the likes (not to make them joint owners of the money in the account).   The problem is of course that on death the deceased’s name is removed from the account due to the right of survivorship, and any named joint account holder(s) are then (on the face it) owners of the account funds.  This is not the correct way of going about it for a number of reasons.  And, it may of course cause issues if not all surviving children/siblings were named on the account.  In this example, you should appoint children under a Finance Lasting Power of Attorney (LPA), and they can then correctly register on the account as an attorney (not a joint owner)!

Read more about Lasting Power of Attorney >

Joint assets – need help?

We hope you’ve found this helpful.  If you need more help – do reach out.  Our expert estate planning solicitors can help with all of your queries around probate, wills, power of attorney and much more.  You can leave a question in the comments section below, phone us, or email.

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