Yes. Generally, the right of survivorship will take precedence over a Last Will and Testament if the jointly-owned property is distributed wrongfully in someone's estate plans. Therefore, you shouldn't list any property in your Will that you and another person(s) jointly own with the right of survivorship.
Problems With Joint Ownership
By jointly owning property, you may find yourself party to a lawsuit if your co-owner is sued or the asset could be lost to a creditor of your co-owner. If your co-owner becomes incapacitated, you could find yourself “owning” the property with the co-owner's guardian or the courts.
If your joint owner survives you, part or all of the property may be subject to estate tax at your death. The applicable exclusion amount, described above, could reduce or eliminate any tax, depending on the value of your assets. If your joint owner sells the property, there may also be taxes owed on the sale.
California courts recognize that survivorship rights in joint bank accounts may be challenged if clear and convincing evidence demonstrating the original account holder had contrary intentions than what was assumed in its creation.
This is what the right of survivorship means. The survivors split the interests. Eventually, when all but the final joint tenant dies, the last person standing will have total rights to the property. He or she can then pass that property on to his or her children or anyone else.
Disadvantages of community property with a right of survivorship: If a spouse dies having willed a property titled as community property with a right of survivorship to someone other than their spouse, their gift may be deemed invalid.
A right of survivorship has distinct benefits to those estate planning, including: Smooth, automatic transfer of property upon death to surviving tenants. Bypasses the often time-consuming and costly probate process.
The result is that a surviving joint tenant will not be responsible for any portion of the estate tax for any joint- ly owned property that passes to the surviving joint tenant, unlike other beneficiaries of your estate.
This isn't permanent, and joint tenancy with right of survivorship can be canceled or changed if all owners agree, if one sells their share in the property or if all owners die at the same time.
A revocable trust allows you to maintain control of your property during your life, and decide how the property is distributed after death, without needing to go through probate court. Your trust can include your home and any other assets you have, making it a comprehensive solution for your entire estate.
A joint account generally passes outside of the will because it is considered to be a non-probate asset meaning it passes directly to the surviving owner rather than through the will.
Joint account holders have the same rights and access to an account as the primary account holder. A joint account holder can designate beneficiaries to the account without authorization from the primary account holder. A beneficiary has no rights or access to your accounts.
The most common scenario of this is in a marriage; a surviving spouse has the right of survivorship in a community property state even if they were not included in the title of the property. States that currently practice community property law include: Arizona. California.
To avoid the first estate passing through probate twice in quick succession, saving on administration costs; and. To impose some control over the eventual destination of assets. This control is only minimal though, considering most survivorship clauses are expressed as 30 days.
Beneficiary Designation Takes Precedence Over A Will
A beneficiary designation supersedes a will.
Many people worry about the estate tax affecting the inheritance they pass along to their children, but it's not a reality most people will face. In 2025, the first $13,990,000 of an estate is exempt from federal estate taxes, up from $13,610,000 in 2024. Estate taxes are based on the size of the estate.
Probate Code section 5302(a) provides that when the death a joint account holder occurs, the account becomes the property of the other joint account holder “unless there is clear and convincing evidence of a different intent.”
This is characteristic of a joint tenancy and tenancy by the entireties. However, tenancy in common does not entail the right of survivorship.
The right to survivorship refers to the legal principle that upon the death of a joint owner, the remaining owner(s) automatically inherit the deceased owner's share of property or assets without having to pass through probate. Here's how it works.
If all the joint owners of an asset intended that when one of them died their share would pass to the other joint owner(s), then this is a survivorship asset. This type of asset is always owned equally and the deceased's share of the asset passes to the other joint owner(s) by survivorship.
If one spouse passes away, then the property passes automatically to the surviving spouse. The community property law states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Co-Owner's Right to Access the Property
A fundamental rule of co-ownership in California is that: “One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee, and each has an equal right to possession of the whole. Possession by one is possession by all.
Today, we're looking at the difference between beneficiaries and survivors – a key distinction you have to have on your retirement account and while you're working. And the general rule of thumb is that beneficiaries are for before you retire and survivors are for after you retire.
Joint Tenancy is sometimes referred to as "Poor Man's Estate Planning" because it happens automatically, without the need for any probate proceeding. Assets that you hold in joint tenancy cannot be left to someone else through a Will or Trust.